superior court of the district of columbia notice of ... · 8 ms. forrest: no, your honor. just...
TRANSCRIPT
Form 1. Notice of Appeal Tax, Civil, Family Court - (Except Juvenile Cases), and Probate
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA NOTICE OF APPEAL (______CROSS APPEAL)
TAX, CIVIL, FAMILY COURT - (EXCEPT JUVENILE CASES), AND PROBATE
Superior Court Case Caption: ____________________________________________________
Superior Court Case No.: _______________________________________________________
A. Notice is given that (person appealing) __________________________________ isappealing an order/judgment from the:
Tax Division Civil Division Family Court Probate Division
1. Date of entry of judgment or order appealed from (if more than one judgment or orderappealed, list all):_______________________________________________________________________
2. Filing date of any post-judgment motion: ______________________________________
3. Date of entry of post-judgment order:_________________________________________
4. Superior Court Judge: _____________________________________________________
5. Is the order final (i.e., disposes of all claims and has been entered by a Superior CourtJudge, not a Magistrate Judge)? YES NO
If no, state the basis for jurisdiction: ______________________________________
Has there been any other notice of appeal filed in this case: YES NO
If so, list the other appeal numbers: _______________________________________
6. If this case was consolidated with another case in this court, list the parties’ names andthe Superior Court case number: _____________________________________________
B. Type of Case: Civil I Civil II Landlord and Tenant Neglect
Termination of Parental Rights Adoption Guardianship Mental Health
Probate Intervention Domestic Relations Mental Retardation
Paternity & Child Support Other: ____________________________________
C. Indicate Status of Case: Paid In Forma Pauperis CCAN
Was counsel appointed in the trial court? YES NO
(COMPLETE REVERSE SIDE) Revised 11/09
FiledD.C. Superior Court04/06/2020 11:21AMClerk of the Court
D. Provide the names, addresses, and telephone numbers of all parties to be served. Forpersons represented by counsel, identify counsel and whom the counsel represents. Foreach person, state whether the person was a plaintiff or defendant in the Superior Court.*Attach additional pages if necessary.
Name Address Party Status Telephone No. (Plaintiff, Defendant)
______________ ______________ ___________________ _______________ ______________ ______________ ___________________ _______________ ______________ ______________ ___________________ _______________
E. Identify the portions of the transcript needed for appeal, including the date of theproceeding, the name of the Court Reporter (or state that the matter was recorded on tapeif no Court Reporter was present), the courtroom number where the proceeding was held,and the date the transcript was ordered, or a motion was filed for preparation of thetranscript. *Attach additional pages if needed.
Date of Proceeding/Portion Reporter/Courtroom No. Date ordered ____________________________ _______________________ ______________ ____________________________ _______________________ ______________ ____________________________ _______________________ ______________ ____________________________ _______________________ ______________
Check this box if no transcript is needed for this appeal.
F. Person filing appeal: Plaintiff Pro Se Defendant Pro Se
Third Party/Intervenor Counsel for Plaintiff
Counsel for Defendant
ATTACH A COPY OF THE ORDER, JUDGMENT OR DOCKET ENTRY FROM WHICH THIS APPEAL IS TAKEN
_________________________________ ____________________________ ________ Print Name of Appellant/Attorney Signature Bar No.
_________________________________ ___________________________________ Address Telephone Number
*Appellant is responsible for ordering and paying the fee for transcript(s) in the Court Reportingand Recording Division, Room 5500. If appellant has been granted In Forma Pauperis status, orhad an attorney appointed by the Family Court, and transcript is needed for this appeal, appellantmust file a Motion for Transcript in Court Reporting and Recording Division, Room 5500. Thatoffice number is (202) 879-1009. If that motion is granted, transcript will be prepared at no costto appellant.
/s/ John B. Williams
Orders and Rulings from Which Plaintiffs Appeal:
• February 8, 2019 (refusal to grant all discovery requested in motion for limited discovery,including all witness interview notes (two 56(d) affidavits filed November 30, 2017;motion filed January 8, 2019)). Docket entry and attached transcript of hearing.
• September 6, 2019 (limitations placed on documents Plaintiffs were allowed to proffer insupport of their opposition to the Defendants’ four Strategic Lawsuits Against PublicParticipation (Anti-SLAPP) motions; reiterated in hearing on November 1, 2019). Docketentry and attached transcript of hearing.
• September 17, 2019 (refusal in advance of briefing to allow surreplies; the order failed toinclude, as requested in Defendants’ proposed order, the express limitations the Court hadplaced during its September 6, 2019, hearing on evidence Plaintiffs were allowed to profferin support of their oppositions to Defendants’ Anti-SLAPP motions). Order attached.
• September 24 and 25, 2019 (sua sponte order disallowing previously ordered depositionsand disallowing request from Plaintiffs’ counsel to be heard on the matter). Orders attached.
• January 23, 2020 (order finding the D.C. Anti-SLAPP statute to be valid andconstitutional). Order attached.
• February 21, 2020 (at hearing on Defendants’ motions, including, but not limited to,refusal to allow Plaintiffs to proffer three additional affidavits). Transcript of hearingattached.
• March 11, 2020; amended March 12, 2020 (orders granting Defendants’ four anti-SLAPPmotions). Orders attached.
List of Hearings Taped and Transcripts Ordered:
Plaintiffs were informed by the court reporting division that the transcripts of all hearings were ordered on the day of the hearing by Defendants, with the exception of the hearing on 2/21/2020 for which the transcript was ordered by Defendants on or about 2/25/2020.
Plaintiffs ordered copies of each transcript within 24 hours of Defendants’ ordering of the transcripts.
9/14/2018-tape Courtroom 317
2/8/2019-tape Courtroom 317
2/14/2019-tape Courtroom 317
9/6/2019-tape Courtroom 317
11/1/2019-tape Courtroom 317
2/21/2020-tape Courtroom 302
Appellants will request that all relevant transcripts be sent to the Court of Appeals as soon as practicable, given the current situation, and will keep the Court of Appeals clerk apprised of all information received from the court reporting division.
Service List:
Attorneys for Plaintiffs Banks, Dunivin, and James:
Louis J. Freeh, Esq. (D.C. Bar No. 332924) FREEH SPORKIN & SULLIVAN, LLP 2550 M Street, NW, First Floor Washington, DC 20037 (202) [email protected]
John B. Williams, Esq. (D.C. Bar No. 257667) WILLIAMS LOPATTO PLLC 1200 New Hampshire Avenue, NW, Suite 750 Washington, DC 20036 (202) [email protected]
Bonny J. Forrest, Esq. (pro hac vice) 555 Front Street, Suite 1403 San Diego, California 92101 (917) [email protected]
Attorneys for Defendants Sidley Austin LLP, Sidley Austin (DC) LLP, and David H. Hoffman:
John K. Villa (D.C. Bar No. 220392) Thomas G. Hentoff (D.C. Bar No. 438394) WILLIAMS & CONNOLLY LLP 725 Twelfth Street, NW Washington, DC 20005 Telephone: (202) 434-5000 [email protected] [email protected]
Attorneys for Defendant American Psychological Association:
Barbara S. Wahl (D.C. Bar No. 297978) Karen E. Carr (D.C. Bar No. 975480) ARENT FOX LLP 1717 K Street, NW Washington, DC 20006 Telephone: (202) 857-6000 [email protected] [email protected]
This appeal questions the validity and constitutionality of a statute: D.C. Code §§ 16-5501-5505.
Attorneys for the District of Columbia:
Karl A. Racine Attorney General for the District of Columbia
Toni Michelle Jackson Deputy Attorney General Public Interest Division
Fernando Amerillas Chief, Equity Section
Andrew J. Saindon Senior Assistant Attorney General 441 Fourth Street, NW, Sixth Floor South Washington, DC 20001 (202) 724-6643Facsimile: (202) [email protected]
Deposition Services, Inc. 12321 Middlebrook Road, Suite 210
Germantown, MD 20874 Tel: (301) 881-3344 Fax: (301) 881-3338
[email protected] www.DepositionServices.com
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
- - - - - - - - - - - - - x
STEPHEN BEHNKE, ET AL., : Docket Number: 2017 CAB 005989
:
Plaintiffs, :
:
vs. :
:
SIDLEY AUSTIN LLP, ET AL.,:
Defendants. : Friday, February 8, 2019
- - - - - - - - - - - - - x Washington, D.C.
The above-entitled action came on for a hearing
before the Honorable HIRAM PUIG-LUGO, Associate Judge, in
Courtroom Number 317.
APPEARANCES:
On Behalf of the Plaintiffs:
BONNY FORREST, Esquire
JOHN B. WILLIAMS, Esquire
LOUIS J. FREEH, Esquire
Washington, D.C.
On Behalf of Defendant Sidley Austin LLP:
THOMAS G. HENTOFF, Esquire
ALEXANDER JAMES KASNER, Esquire
Washington, D.C.
On Behalf of Defendant APA:
BARBARA S. WAHL, Esquire
KAREN ELLIS CARR, Esquire
DEANNE M. OTTAVIANO, Esquire
Washington, D.C.
19-00601
2
P R O C E E D I N G S 1
THE DEPUTY CLERK: Your Honor, now calling the 2
matter of Stephen Behnke, et al. vs. Sidley Austin, LLP, 3
et al., case number 2017-CA-5989. Parties stand and state 4
your name for the record. 5
MS. FORREST: Bonny Forrest, Your Honor, for the 6
plaintiffs. 7
THE COURT: Good afternoon, Ms. Forrest. 8
MR. WILLIAMS: Your Honor, John Williams also on 9
behalf of plaintiffs. 10
THE COURT: Sir. 11
MR. FREEH: Louie Freeh, Your Honor, for Steve 12
Behnke. 13
THE COURT: Sir. 14
MR. SULLIVAN: Gene Sullivan, Your Honor. 15
THE COURT: Good afternoon. 16
MR. HENTOFF: Good afternoon, Your Honor. 17
Thomas Hentoff for the Sidley defendants and with me is 18
Alex Kasner. 19
THE COURT: Okay. 20
MS. WAHL: Good afternoon, Your Honor. Barbara 21
Wahl on behalf of the American Psychological Association. 22
With me is my partner, Karen Carr and the general counsel 23
of the American Psychological Association, Deanne 24
Ottaviano. 25
3
THE COURT: All right. Good afternoon, 1
everyone. As I understand it, there's a number of things 2
that we need to talk about. But first of all, what's 3
happening in Massachusetts? Was there some litigation 4
going on there? 5
MS. FORREST: The judge has stated, Mr. Hentoff, 6
please interrupt if you think I'm not saying it 7
accurately. I believe the Court has a copy of the order 8
on file. The judge has stated pending what happens here 9
today, and we're prepared to move forward here today, Your 10
Honor, and that was all dependent on us dropping Ohio, 11
which the Court also here reiterated to drop Ohio. We've 12
done that and we're prepared to move forward. We'll file 13
a status report with the judge there on the 28th of this 14
month, Your Honor. 15
THE COURT: As I understand it, the only motion 16
that's been fully briefed is the one related to the 17
plaintiff's request for limited discovery. 18
MS. FORREST: That's correct, Your Honor. 19
THE COURT: Everything else is partially briefed 20
but oppositions are due. Is that correct? 21
MS. FORREST: We would contend oppositions 22
aren't due until the discovery motion's ruled on because 23
the discovery motion is obviously to answer those two 24
other motions, so -- 25
4
THE COURT: Right. So let me just be precise 1
about the language. What we're talking about is setting 2
dates for additional pleadings that may be filed. 3
MS. FORREST: Correct, Your Honor. 4
THE COURT: Correct? Okay. Now, Ms. Forrest, 5
is there anything else you'd like to say regarding the 6
opposed motion for limited discovery? 7
MS. FORREST: No, Your Honor. Just that we 8
would, we think that's the threshold motion. We believe 9
we've limited it with the latest concession and defendants 10
papers, we're talking about three depositions and five 11
limited discovery requests, two of which we believe will 12
require no documents. And then -- 13
THE COURT: I thought there were four 14
depositions. Are you -- 15
MS. FORREST: There were just three. We had 16
dropped one. Originally, we had asked for Theresa 17
McGregory, Your Honor, and then we dropped that because 18
they stated in their papers that she had no other 19
knowledge concerning Dr. Newman's employment with the 20
second APA entity. 21
THE COURT: But Ms. McGregor had to do with the 22
motion to compel arbitration. 23
MS. FORREST: Correct. And that would be under 24
an employment agreement. They contend that there's a 25
5
valid agreement to arbitrate. We contend there is no 1
valid agreement to arbitrate. But most importantly, Dr. 2
Newman had an agreement which is referenced in the APA tax 3
returns with another entity. 4
THE COURT: Okay. We're talking about two 5
things. We're talking about discovery for purposes of the 6
anti-SLAPP litigation and discovery for purposes of the 7
motion to compel arbitration. 8
MS. FORREST: Right. 9
THE COURT: Okay. So how many depositions are 10
you seeking? 11
MS. FORREST: For the SLAPP? 12
THE COURT: Yes. 13
MS. FORREST: Three, Your Honor. 14
THE COURT: In your motion you state four 15
individuals. Which one are you no longer interested in 16
deposing? 17
MS. FORREST: I don't, I believe one of them was 18
with respect to the other motion, Your Honor. That's why, 19
I apologize, I got confused. Let me just be clear about 20
what we're asking for in the SLAPP. Dr. Heather Kelly, 21
who is an employee of APA, Dr. Michael Honneker, who is a 22
former employee, and Dr. Stephen Solts, who is also a 23
defendant in Massachusetts but he, we allege he supplied 24
the false narrative to Mr. Hoffman. 25
6
THE COURT: Okay. But I thought there was a 1
fourth person, first name Heather. 2
MS. FORREST: That's Heather Kelly. We were 3
deposing, at one point, Dr. Jennifer Kelly. 4
THE COURT: Jennifer Kelly. 5
MS. FORREST: A bit confusing. We've dropped 6
her deposition because what we've done, and we said we 7
would stipulate if, unless the defendants were 8
uncomfortable, we've summarized 15 years of business 9
records of APA to show Dr. Jennifer Kelly's involvement in 10
each of the matters that were dealt with here in the 11
report and she voted to release the report so she would 12
have known it was false. And so we said if they're 13
willing to stipulate to the business records in our 14
summary, we'll drop her deposition, Your Honor. 15
THE COURT: Mr. Hentoff? 16
MR. HENTOFF: Yes, Your Honor. So the 17
defendants would like the opportunity to submit one more 18
brief on the plaintiff's discovery motion. That motion, 19
before the case was stayed, was fully briefed back in 20
December of 2017. And while the case was stayed, the 21
plaintiffs have filed more and more briefs in support of 22
their fully briefed motion, including just in their 23
January 8th scheduling conference motion, an exhibit and 24
an affidavit with single spaced and all sorts of new 25
7
arguments. And we'd like the opportunity, now that the 1
case is going to be un-stayed, to just have one short 2
brief to respond to a lot of new written arguments that 3
have been made since the motion was fully briefed. 4
THE COURT: We're going to resolve the motion 5
for discovery today and if there's anything else that you 6
would like to file that you haven't filed already, you're 7
welcome to do so but I'm ready to proceed with that 8
motion. Is there anything else you'd like to add to what 9
you've submitted? 10
MR. HENTOFF: Yes, Your Honor. I'd like to 11
address both the arbitration motion and the anti-SLAPP 12
motion. Does Your Honor have a preference? 13
THE COURT: Are we talking about the merits of 14
those motions or the issue of discovery? 15
MR. HENTOFF: Solely the issue of discovery, 16
Your Honor. 17
THE COURT: Okay. Yes, sir. 18
MR. HENTOFF: I'll start just briefly with the 19
arbitration motion. The basis of Sidley's alternative 20
estoppel motion to compel arbitration is quite simply look 21
at the employment agreements that are already in front of 22
the Court and look at the allegations of the complaint and 23
see whether, as we say, the allegations of the complaint 24
either sufficiently allege identical causes of action 25
8
against both the signatory, APA, and the non-signatory, 1
Sidley, or the complaint's allegations allege sufficiently 2
intertwined concerted misconduct that both cases should go 3
forward in arbitration. So the plaintiffs make two 4
arguments as to why they should get the arbitration 5
discovery as to Sidley that they're seeking. The first is 6
they make an argument that there's a different type of 7
equitable estoppel that the Court should apply instead and 8
under that type of equitable estoppel, one still actually 9
looks at the allegations of the complaint but the Court 10
looks to see whether the allegations against the 11
non-signatory defendant are sufficiently intertwined with 12
the agreement that contains the arbitration provision. We 13
don't think that that should apply but even so, the Court 14
still has all the information in front of it and doesn't 15
need any discovery. What the plaintiffs want are any 16
agreements that may exist between APA and Sidley that were 17
entered into after the report was, that Sidley's report 18
was provided. And those have nothing to do with the 19
arbitration motion and they have nothing to do with the 20
employment agreements that have the arbitration 21
provisions. And so that's the sum total of my additional 22
argument on the arbitration motion. 23
So with regard to the anti-SLAPP motion, in the 24
discovery that plaintiffs seek, I've just got a couple of 25
9
points that I'd like to focus on. The first is plaintiffs 1
don't need any discovery at all. Because as we have 2
clearly stated in our anti-SLAPP motion, the premise of 3
our anti-SLAPP motion is that the non-conclusory factual 4
allegations of plaintiff's complaint are true and those 5
allegations, nevertheless, fail to rise to the level of 6
establishing actual malice. Therefore, the premise of the 7
motion is based on the complaint. Plaintiff's have made 8
their best argument in their own complaint and there is no 9
need for any discovery. 10
In the Mann case, which DC Court of Appeals 11
decided back in 2016 and recently has modified a little 12
bit, the Court of Appeals reiterated that on a DC anti-13
SLAPP motion, the plaintiffs have to make a showing that 14
this is a valid case and that showing is usually done 15
without discovery. And there's nothing about Sidley's 16
motion and also APA's motion that would call for any 17
discovery to permit plaintiffs to make the argument that 18
their complaint does sufficiently allege actual malice. 19
THE COURT: But if that's all that's required, 20
why would the anti-SLAPP legislation allow for targeted 21
discovery? 22
MR. HENTOFF: Because the Anti-SLAPP Act does 23
allow for targeted discovery in those cases where 24
plaintiffs can show that the discovery would likely permit 25
10
them to defeat the motion. So for instance, if we had 1
supported our motion with affidavits and then plaintiffs 2
might say, well, we need to discovery to address and 3
defeat the points that are made in the affidavits. But we 4
very, you know, specifically said assume to be true all 5
the non-conclusory allegations in the complaint. And 6
beyond that, the discovery has to be, in any event, has to 7
be targeted and it has to be non-burdensome. And the 8
plaintiffs have asked for all of the documents that Sidley 9
created in this eight month investigation in which they 10
interviewed 150 people 200 times. And that is completely 11
inconsistent with the notion of targeted and non-12
burdensome discovery and plaintiffs have not cited a case 13
that allows anything like the discovery they're seeking in 14
an anti-SLAPP case. 15
And then the final point is plaintiffs have 16
asked the Court to be allowed to engage in discovery. And 17
before that occurs, they're asking for documents that were 18
created by a law firm for its clients. So in addition to 19
the burden of just -- 20
THE COURT: Is she correct when she writes in 21
her motion that the agreement between APA and Sidley 22
essentially waived certain privileges? 23
MR. HENTOFF: That's correct, Your Honor. 24
THE COURT: Okay. 25
11
MR. HENTOFF: The agreement waived attorney 1
client privilege as to very significant, important aspects 2
of the investigation. It did not waive attorney client 3
privilege as to advice that Sidley may give that wasn't 4
part of the investigation and the agreement very expressly 5
preserved work product immunity. And then on top of that 6
you just have working attorneys at a law firm who are 7
creating documents and have that client, they've got other 8
clients, and as we all know, when one has to do a document 9
production, particularly involving lawyers, there has to 10
be very careful and extensive privilege review, which 11
really makes the whole exercise quite expensive and quite 12
burdensome and then I'll just conclude by repeating that 13
our argument is they've made the factual allegations, that 14
doesn't state a valid case in an actual malice case and 15
you even see this in federal courts that don't, where they 16
don't have an anti-SLAPP act but they do apply the Iqbal 17
and Twombly gatekeeper function on a 12(B)(6). And 18
basically, I think every federal court to look at it on an 19
actual malice case has said the real, you know, forget the 20
actual, forget the Anti-SLAPP Act, you know, the courts 21
who have looked at them have said the Court has to perform 22
a gatekeeper function in an actual malice case to make 23
sure that the factual allegations are sufficient. And 24
that's just the basis of our motion and it's a motion that 25
12
can be very readily addressed by the plaintiffs. 1
THE COURT: What is the standard that I use when 2
I look at things from a 12(B)(6) perspective? 3
MR. HENTOFF: Your Honor, I think that the 4
standard is to accept as true the non-conclusory factual 5
allegations and the reasonable inferences from those 6
factual allegations and then see whether, basically under 7
the actual malice case law, whether the plaintiffs have 8
stated a valid case. 9
THE COURT: If I publish my work, to what extent 10
have I waived any privilege over it? 11
MR. HENTOFF: Your Honor is saying if Your Honor 12
were a lawyer doing an investigation? 13
THE COURT: Yes. 14
MR. HENTOFF: I believe that when we get to 15
discovery, the defendants are going to be in a position to 16
say here's what is not, here's what's possibly, say 17
waiver, maybe waiver then, maybe waiver now, just to 18
present the materials. But I would say when you, what I 19
would say is I think there is some waiver and it's not our 20
intention in this case to say that the plaintiffs cannot 21
have the interview memos that were, you know, cited in the 22
report or at least the parts of those memos that are cited 23
in the report. But we haven't gotten to that point where 24
our clients have to make that decision, but that is my 25
13
expectation. 1
THE COURT: Okay. Thank you, Mr. Hentoff. Ms. 2
Wahl, anything you would like to add? 3
MS. WAHL: Yes, Your Honor. And unfortunately, 4
quite a bit, and I apologize for that but the arbitration 5
issue is one that I think the Court has to take a careful 6
look at. And that is because the recent Henry Shine case 7
issued by the Supreme Court on January 8th, 2019 somewhat 8
changed the landscape of what the Court actually can even 9
look at and should decide in connection with an 10
arbitration motion. And before the Shine case, there, 11
that's a Supreme Court case, that ironically it came out 12
the same exact day, January 8th, that the plaintiffs filed 13
their scheduling motion and somewhat changed their 14
discovery requests regarding arbitration. But the Shine 15
case is unambiguous that the Court's sole look at this 16
issue of arbitrability is whether there is an extant 17
arbitration agreement. The Court is not supposed to 18
decide whether there's been a waiver, whether there were 19
limitations, whether there was incompetence, none of those 20
things are before the Court. It's a very narrow look. 21
And that was already pretty much what the DC case law was 22
but the Shine case made that unambiguous. So what the 23
plaintiffs have asked for here is the following discovery 24
related to arbitration, and that is a deposition from Dr. 25
14
Honneker, who was one of the signatories of the employment 1
agreements of Dr. Behnke and the signatory of the 2
agreement, the employment agreement of Dr. Newman. They 3
say that their discovery of Dr. Honneker on the 4
arbitration issue would show that he did not intend to 5
arbitrate a defamation case. We would submit to you, Your 6
Honor, that there are multiple reasons why that would be 7
completely irrelevant to the Court's inquiry, including 8
that what Dr. Honneker thought or didn't think at the time 9
he signed the agreement is immaterial when you have an 10
extant agreement that the Court should be evaluating on 11
its face. And the -- 12
THE COURT: Is there any ambiguity about the 13
language in the arbitration agreement? 14
MS. WAHL: We do not believe so, Your Honor, nor 15
have the plaintiffs so alleged. They've alleged some 16
other reasons why they think Dr. Honneker's deposition 17
would be of interest to them, meaning his intent, but 18
they've never said that there's ambiguity about the 19
meaning of the agreement, at least not in the five 20
iterations on the arbitration discovery that we have seen 21
to date. But your point is exactly the next one that I 22
was going to make, which is extraneous extrinsic evidence 23
pertinent to a document is only relevant if, in fact, 24
there's any ambiguity. We would submit to you there is no 25
15
ambiguity nor have the plaintiffs so alleged. The 1
language of the agreement is abundantly clear and it says 2
it arises, if a dispute arises regarding the parties' 3
respective rights, duties or obligations under the 4
agreement. There's no question that the allegations of 5
the complaint were that Dr. Newman and Dr. Behnke were 6
defamed in connection with their exercise of employment 7
duties. And there's DC case law right on this point that 8
says defamation claims are covered notwithstanding the 9
fact that it is an employment type agreement. 10
Unfortunately, sorry. I can give you that case if that is 11
of interest to you. 12
THE COURT: Sure. 13
MS. WAHL: It's Pierce vs. EF Hutton, 828 F.2d 14
826, pin cite is 833 and that's a DC Circuit 1987 case. 15
So that would be Dr. Honneker's deposition, which we 16
submit to you is irrelevant and unnecessary. 17
They have also asked for all of the employment 18
agreements of Dr. Behnke and Dr. Newman. We have provided 19
those already. They have been produced. Whether Dr. 20
Newman was employed by a subdivision of APA or not is 21
immaterial. We have produced everything already and we 22
stand on the agreements that we've already provided. 23
Mr. Hentoff touched on the other category of 24
documents that they've requested which are the APA Sidley 25
16
agreements and here I think that they have attempted some 1
facial appeal of that. Well, we need to know everything 2
about why APA and Sidley are intertwined in order to know 3
if there is an estoppel argument related to 4
intertwinement. But that's the wrong formulation of 5
intertwinement. The question for arbitrability concerns 6
is whether the claims are intertwined, not the parties. 7
And here it is unambiguous that the defamation claims 8
being asserted against the defendants are all intertwined. 9
They have alleged that APA hired Sidley to prepare the 10
report that APA, Sidley prepared the report, introduced, 11
interviewed the witnesses, APA then published the report. 12
And according to them, so did Sidley. This is all of a 13
piece and intertwined. We have already provided, they 14
have and they've submitted it, the retainer agreement 15
between APA and Sidley and that preceded, kicked off the 16
engagement. So that's most relevant document. They seem 17
to be fishing for joint defense agreements, liability 18
allocation agreements. Those would all be, if they 19
existed, all post the filing of the litigation and would 20
not be relevant to any intertwinement argument, 21
whatsoever. 22
Last but not least, and this one truly has me 23
baffled, they are looking for legal opinions that were 24
referred to an e-mail internal to APA regarding legal 25
17
advice that was provided after the report was issued by 1
Sidley and Wilmer Hale. We would submit, Your Honor, that 2
that has nothing to do with anything in this case. That's 3
simply fishing for something. Has nothing to do with 4
either the arbitration motion or the anti-SLAPP motion. 5
In sum, there's not even, just to go back, 6
maybe, to the beginning, neither the DC Arbitration Act 7
nor the Federal Arbitration Act has anything provision for 8
discovery. 9
THE COURT: But she's saying you need to treat 10
this as a motion for summary judgment, Rule 56 governs. 11
MS. WAHL: She does say that but she 12
misapprehends what the references to Rule 56 are. There 13
are a number of cases that refer to Rule 56 standard. So 14
what that means, and the cases are really clear about this 15
and I can cite you one about that, is that, can cite you 16
several ones about that, is that the Court is to make its 17
ruling about arbitration based on whether there are 18
undisputed facts. Forget the legal arguments, but 19
undisputed facts, clearly, the Rule 56 standard. And of 20
course, under Rule 56(D) if there's a dispute as to facts, 21
the party disputing gets some limited targeted discovery 22
so that there can be a determination as to whether the 23
facts alleged are, in fact, disputed. That's clearly a 24
very different process than what's envisioned here. All 25
18
the cases refer to two things. One is that the Court is 1
to make a decision about arbitrability based on whether 2
there is an extant agreement to arbitrate. If there's any 3
question about that, the Court can hold an evidentiary 4
summary hearing and -- 5
THE COURT: That's what I would hold after, like 6
you say, the opposition has been filed and the issue has 7
been briefed. We're here a step ahead of that -- 8
MS. WAHL: We are. 9
THE COURT: -- okay. 10
MS. WAHL: We are. But there is no case law in 11
the District of Columbia or that we have found elsewhere 12
in the federal system that, DC Federal Courts, that says 13
if you are arguing about the extent of arbitrability, you 14
get discovery about that. In fact, that's where the Shine 15
case is important because to the extent that there -- 16
THE COURT: But isn't that what the Court of 17
Appeals said in Haynes vs. Kuder? 18
MS. WAHL: The Court of Appeals in Haynes vs. 19
Kuder said you can only decide this narrow question. No 20
discovery was allowed in Haynes vs. Kuder. In fact, what 21
I believe happened there was the court -- 22
THE COURT: They say you look at Rule 56. 23
MS. WAHL: They did say you look at Rule 56. 24
Let me pull the case, if you don't mind. There was an 25
19
evidentiary hearing, they said that an evidentiary hearing 1
was not needed because the Court was able to resolve the 2
disputes on the papers. 3
THE COURT: Right. But that's separate from the 4
issue of discovery. 5
MS. WAHL: Well, there is not a case except for 6
one, which was a consumer adhesion contract, in which 7
discovery has been permitted in the District of Columbia, 8
that we found. And there has been no allegation here that 9
this is an adhesion contract, and more specifically, the 10
Court, in a look see on this, shouldn't be looking at the 11
contract as a whole but arbitration. So we would submit 12
to you, Your Honor, that there's no reason for that 13
discovery in any regard and that Rule 56, as applied here, 14
in the Haynes case and others, does not allow a 15
discoverability. It does allow, in the event of a dispute 16
about whether there is an arbitration agreement, an 17
evidentiary hearing, but there is no dispute here. They 18
have not contested that there is a valid arbitration 19
agreement in a valid contract. So we would submit, Your 20
Honor, that there should be no arbitration discovery. 21
As to the anti-SLAPP question, I would echo Mr. 22
Hentoff's comments only in one further regard. This is 23
not, the plaintiffs need to show, in order to get 24
anti-SLAPP discovery under the DC Anti-SLAPP Act, that 25
20
they will, if they get this discovery, win their motion. 1
THE COURT: Isn't that putting the cart before 2
the horse? 3
MS. WAHL: Well, it's one of three categories 4
that the SLAPP statute provides. 5
THE COURT: Will enable to defeat. Not that 6
they will prevail. 7
MS. WAHL: Will enable to defeat and will 8
prevail is a semantic issue, I would submit to you, Your 9
Honor. 10
THE COURT: No. I think it's a slight, you're 11
right, it's cutting it close but will enable. Okay. 12
Please continue. 13
MS. WAHL: I think that the point here is not 14
only about it's not supposed to be burdensome and, yes, 15
it's supposed to be targeted but it's not supposed to be a 16
sort of frolic and detour through whatever the parties 17
have. And it's supposed to enable the plaintiff to win. 18
Or the language of the statute, of we defeat, whatever the 19
exact language, some, yes. The depositions and documents 20
that the plaintiffs here have requested are much broader 21
than that. As Mr. Hentoff said, essentially for purposes 22
of the anti-SLAPP motion we're conceding the facts that 23
underscore their actual malice argument. What else is 24
there to discover? They want to take the deposition of 25
21
Dr. Heather Kelly, who will say I emerged, according, this 1
is their papers, I don't know that Dr. Kelly would say 2
such a thing, I emerged from an interview with Mr. Hoffman 3
and felt that he hadn't listened to me and I warned APA 4
about that. I don't know how that's actual malice, as the 5
statute provides, and even if it is, that's effectively 6
conceded in our motion. Similarly with regard to, I think 7
the question about Dr. Honneker is the same, which is he 8
would say I didn't feel like Hoffman listened to me. Same 9
problem. The opinions of various interviewees, we would 10
submit, Your Honor, are really not relevant to an analysis 11
of actual malice. The facts alleged in the complaint are 12
deemed by us to be admitted and now we're just arguing 13
about where you conclude from that. 14
THE COURT: But isn't there a difference between 15
what's discoverable and what's admissible? What you are 16
saying is that essentially it wouldn't be admissible 17
because it would be inappropriate opinion. 18
MS. WAHL: Well, for purposes of ruling on this 19
anti-SLAPP motion, I don't know that we're talking about 20
admissibility at all. We're talking about, that's a more, 21
less a trial concept. 22
THE COURT: Right. 23
MS. WAHL: We're saying for purposes of the 24
motion, everything you've said in the complaint, all the 25
22
facts that you've said in the complaint are true. And we 1
can line up 100 of the witnesses who were interviewed by 2
Mr. Hoffman who feel like they were accurately quoted and 3
we can line up another 42 who think they were -- 4
THE COURT: Oh. Don't worry. That's not going 5
to happen. 6
MS. WAHL: It's not a swearing contest like we 7
use to have in Old English Law. So our position on this 8
point, Your Honor, is that given the stance that we've 9
taken in our anti-SLAPP motions, it's superfluous to order 10
that type of discovery. We've already conceded those 11
facts, in effect. 12
THE COURT: Okay. Thank you, Ms. Wahl. Ms. 13
Forrest, have you received the employment agreements 14
between Dr. Behnke, you said Dr. Newman, as well? 15
MS. FORREST: We have. Both Dr. Behnke and Dr. 16
Newman. For Dr. Behnke, yes, we have all the employment 17
agreements and we contest that those terminated and the 18
acts of publication, which are issue here, happened in a 19
majority after the agreement was terminated and that's the 20
Leader Tech's case that we cited in our papers and also 21
the first reply, Your Honor, we would refer the Court. 22
As -- 23
THE COURT: But I'm not ruling on the motion, 24
I'm not ruling on the merits of the motion to compel 25
23
arbitration. We're simply talking about what discovery, 1
if any, should be allowed. 2
MS. FORREST: Correct. But we contest the 3
ability of the agreement is what I'm trying to get at. So 4
the, once the agreement expired, we are contending there 5
is no valid agreement to arbitrate for purposes of the 6
discovery, Your Honor. Just trying to clarify that. So 7
for Dr. Behnke, we do have all those agreements. For Dr. 8
Newman, in 2005, and we can provide this agreement with 9
the Court, there was a, it's not a subsidiary of APA. APA 10
had a sister organization that it was a 501(c)(6), it 11
still exists. It's an advocacy organization. Dr. Newman, 12
in 2005, actually signed the tax return and that 13
references a side agreement. We also know, and Dr. 14
Honneker would testify, there was at least one 15
modification. We don't know if that was in writing, Your 16
Honor, or if it was done through a personal action form. 17
That's why we want to specifically depose Dr. Honneker. 18
THE COURT: But I, Dr. Honneker is essentially 19
parol evidence if we're making an analogy here to contract 20
law, considering the agreement is a contract. The issue 21
is whether or not the language is clear. 22
MS. FORREST: Well, we would argue under the 23
arbitration agreement there's three issues, Your Honor. 24
In Shine, we would contend on page six of the Westlaw 25
24
cite, at least, from my memory, in fact, says we will not 1
decide today, the Supreme Court said we will not decide 2
today whether this particular agreement requires the 3
arbitrator versus the court to decide arbitration. So set 4
that aside for a minute. We would contend with respect to 5
Dr. Newman, he had a whole separate employment. Half of 6
his work was for the 501(c)(6) on a summary judgment Rule 7
56 standard, they haven't produced an agreement to 8
arbitrate. If they say that doesn't exist, then they 9
don't have an agreement for half of his work, any 10
agreement they've produced to arbitrate. Set that issue 11
aside. The next issue the Court will go to would be 12
waiver, Your Honor. And with waiver, we offered them 13
arbitration with Honorable Patricia Weld, they turned us 14
down. We have an affidavit from a director at the time 15
who said we considered that and turned, we turned them 16
down as the board. We also believe Khan v. Global Parsons 17
makes it very clear that once you file a summary judgment 18
like motion with a motion to compel arbitration, you waive 19
your right to arbitration. 20
And then finally, the arbitration clause, 21
itself, very narrow. Eleven of 13 circuits have found 22
this particular clause very narrow. Only certain issues 23
under the agreement are arbitrable. And that's very clear 24
from the case law. And we've provided those cases in our 25
25
papers. To go to the Sidley arbitration for a moment -- 1
THE COURT: Just a second. 2
MS. FORREST: Okay. 3
THE COURT: Are you saying that the anti-SLAPP 4
motion is analogous to a motion for summary judgment? 5
MS. FORREST: The Court of Appeals has said 6
that, Your Honor, a footnote, and that's in our papers. 7
They said it's the analogous, the analogy to the Rule 56 8
motion and also just about every circuit now, including 9
the DC Circuit said that. 10
THE COURT: So the Court of Appeals from the DC, 11
are you talking about the Court of Appeals or the DC 12
Circuit? 13
MS. FORREST: I'm talking about both. Mann said 14
it's a summary judgment in a footnote. It said it's the 15
equivalent of a summary judgment. Mann was decided, as 16
I'm sure Your Honor knows, after a boss which was written 17
by then Judge Kavanaugh, now Justice Kavanaugh, and they 18
said the Court, DC Circuit has never held where they said 19
basically they've never held that it's equivalent of a 20
summary judgment. Then Mann gets decided and it says, 21
they said we've never held that this is like a summary 22
judgment motion, we do so now. And they say that in a 23
footnote, Your Honor. 24
THE COURT: But at this point we're talking 25
26
about the issue of limited discovery. We're not talking 1
about the merits of the motion. 2
MS. FORREST: Correct. 3
THE COURT: Okay. 4
MS. FORREST: We believe that the discovery 5
standard from Mann is in old footnote 52, which became 6
just now footnote 53. And it said, can is discovery, 7
discovery allowable to defeat the motion. We believe that 8
the complaint alleges five theories of actual malice, 9
although we contend, and we want to do a private 10
individual motion, that none of these folks are going to 11
ever have to show actual malice because they're private 12
individuals. But if you go back -- 13
THE COURT: Aren't they limited public figures? 14
MS. FORREST: No. No, Your Honor, they're not. 15
THE COURT: Doesn't the law of defamation apply 16
to anti-SLAPP definitions? 17
MS. FORREST: It does but they're not public 18
figures, Your Honor, and that would be, that's why we need 19
a private individual motion. We would refer the Court to 20
a case that was decided in Federal Court just a few weeks 21
ago, January 14th, Freedman vs. Bean, and I'm happy to 22
provide the citation. But in that Court, but that case, 23
which is very analogous, they filed an anti-SLAPP motion. 24
Judge said I can't decide it on affidavits. If plaintiffs 25
27
contest this, this is an affirmative defense that you have 1
to prove and you're not able to do it just on your 2
affidavits. We've got problems with a number of the 3
affidavits they submitted and that's why we would want to 4
go in on a separate motion to show these are private 5
individuals, Your Honor. 6
THE COURT: Okay. 7
MS. FORREST: I have three other issues that I 8
wanted to address if Your Honor, unless Your Honor's -- 9
THE COURT: Are they related to the motion that 10
I'm talking about or are they separate issues that you'd 11
like to discuss? 12
MS. FORREST: They are, they're related to what 13
the defendant said. 14
THE COURT: Okay. 15
MS. FORREST: So with respect to the relevance 16
of the depositions, Your Honor, specifically, we've 17
alleged that Mr. Hoffman got a false narrative from Dr. 18
Solts, in particular, and that he distorted the evidence. 19
We have evidence that, in fact, he fit that evidence into 20
a false narrative. That's Eramo vs. Rolling Stone. Dr. 21
Kelly, which we understand from a third party witness they 22
verified, will, in fact, say -- 23
THE COURT: Which Dr. Kelly? 24
MS. FORREST: My apologies, Your Honor. Dr. 25
28
Heather Kelly. 1
THE COURT: Heather Kelly. Okay. 2
MS. FORREST: Yes. Will say that I confirm this 3
was false and defamatory, that this should not happen, 4
that this needed to be stopped. In fact, the 5
investigation was changed at one point because of her 6
concerns and then they started the investigation again. 7
We would cite -- 8
THE COURT: If you know all this stuff, why are 9
you asking for limited discovery? 10
MS. FORREST: Because we believe the way the 11
SLAPP works is that it's cumulative evidence. And so 12
while we have some affidavits, we believe those, that 13
evidence in the notes, in particular, and we believe, 14
first of all, less than 20 of these people, 148 interview, 15
were clients. There's no privilege for most of them. 16
Attorney work product was waived. They cite the 17
interviews over 200 times. We want those interviews to 18
show how far distorted. You heard Ms. Wahl say that, in 19
fact, it's just their opinion that they didn't like it. 20
Maybe it's opinion if it was four or five, Your Honor. At 21
the point that over 20 percent of the witnesses say he 22
distorted, falsified or otherwise created a false 23
narrative, that's actual malice. 24
THE COURT: Are you saying there's more than 10 25
29
witnesses from whom you've gotten affidavits? 1
MS. FORREST: We have 18 affidavits, Your Honor. 2
THE COURT: Okay. 3
MS. FORREST: And we're prepared to -- 4
THE COURT: Please continue. 5
MS. FORREST: -- probe for those. We actually 6
have them here in a notebook today. 7
THE COURT: Okay. I'm sorry. Please continue. 8
MS. FORREST: Work product. We're going to have 9
a choice of law issue. Mr. Hoffman's only admitted in 10
Illinois. Let's assume DC applies and I'll argue that. 11
But Illinois has some of the least stringent work product 12
restrictions of anywhere. And especially when he talks 13
about his work, cites to the credibility, cites to what 14
they said exactly, you can't then shield it and say you 15
don't get it, that it's still work product. 16
Couple quick points about the arbitration, Your 17
Honor. First of all, we talked about the Shine case. The 18
Sidley case, in our reply papers to Sidley in November, 19
Your Honor, sorry, in December, three cases against 20
Sidley, directed at Sidley, articulating the standard 21
they're citing here, which the Court, each one said that's 22
not the standard. The standard is that you're intertwined 23
to rely on the agreement. The reason you treat this like 24
a Rule 56 motion, Your Honor, they provided the employment 25
30
agreements. We didn't even have them. So I couldn't have 1
relied on them when we prepared the complaint. So like 2
it's treated like a Rule 56 and not 12(B)(6) because they 3
relied on documents external to the complaint. Therefore, 4
at that point, that's why the discovery issue comes in. 5
Two minor issues with respect to public minutes 6
with respect to privilege after the fact, those actually 7
were APA minutes that wasn't in the internal document, 8
where he claims privilege. Hoffman and APA's lawyer then 9
claims privilege. After the fact, after he got rehired to 10
redo the report, because I had met with our counsel to 11
show him the policies. Okay? So we want that agreement. 12
They represented to Ohio that there was no jurisdiction 13
over each of them because their relationship was so 14
separate. Under the tests that we've articulated in our 15
papers, they have to be intertwined and intertwined with 16
the underlying agreement. 17
THE COURT: Again, but that goes to the merit of 18
the motion, not the scope of discovery, if any. 19
MS. FORREST: Well, but if we need the agreement 20
to show what their relationship is, Your Honor. That's 21
what, that's the issue. But the test relies on how close 22
their relationship for equitable estoppel, which we 23
believe it does, and they've claimed they're separate but 24
they have an agreement that claims privilege subsequently 25
31
and they've been defending jointly the true nature of 1
their relationship, they've put it at issue by arguing 2
equitable estoppel. 3
THE COURT: Who carries the burden of proof in 4
terms of the motion to compel arbitration? 5
MS. FORREST: They do, Your Honor. That's under 6
a summary judgment standard. 7
THE COURT: Okay. 8
MS. FORREST: Thank you. 9
THE COURT: Thank you. 10
MR. HENTOFF: Your Honor, may I respond to a few 11
points? 12
THE COURT: Yes, but at some point this 13
conversation’s going to have to come to an end so I can 14
rule, okay? 15
MR. HENTOFF: Okay. Thank, Your Honor. 16
Plaintiffs’ counsel talked about plaintiffs’ argument that 17
they’re not public officials or limited public figures. 18
That, that’s a legal argument. They have not asked for 19
any discovery on that issue so when it’s time for them to 20
oppose the anti-SLAPP motion, they can make the argument 21
that our, we should lose on actual malice because the 22
plaintiffs are not public officials or limited purpose 23
public figures. 24
THE COURT: We’re not there yet. 25
32
MR. HENTOFF: Right, it’s, it’s not a discovery 1
issue. The plaintiffs now have 18 affidavits, which I 2
would say again they, they can load all of that into their 3
opposition, and we can evaluate them finally and see if 4
we’re right that what those affidavits say don’t, you 5
know, don’t rise to the level of actual malice because as 6
we say in our anti-SLAPP motion and it’s, you know, this 7
is, everyone agrees it’s the law. It’s very difficult to 8
establish actual malice. You have to show that the 9
defendant either knew what they were saying is false or 10
went forward with a high degree of subjective doubt as to, 11
as to truth and, and went forward anyway. And just for 12
one example, so they’ve, they haven’t shown us all these 13
affidavits that they say are so important but in the 14
plaintiffs’ reply brief back in December of 2017, they 15
linked to two affidavits that they already had filed in 16
the Ohio case. One of them was of a Dr. Swenson (phonetic 17
sp.), okay? And then they say Dr. Swenson said she wasn’t 18
listened to; they got it all wrong. Well, you know, I 19
looked at that affidavit. It’s public and she says, you 20
know, I told Sidley that I didn’t feel any pressure to 21
close a particular ethics investigation. Okay, I went 22
through the Sidley report. I looked for Dr. Swenson and 23
essentially it says Dr. Swenson said she didn’t feel any 24
pressure so that’s in, you know, what she said is actually 25
33
in the report. So I don’t know what those 17 affidavits 1
say but they don’t meet the plaintiffs’ burden of showing 2
that discovery from Sidley will and these depositions will 3
enable, is likely to enable them to defeat the motion. 4
And my final point on that is there’s really a 5
giant missing thing in plaintiffs’ argument here, which is 6
this is a defamation case. In defamation cases there’s a 7
false statement of fact and as we cite in our opposition 8
brief to the motion to compel, the Tabloreis (phonetic 9
sp.) case says there’s not actual malice in the abstract. 10
There’s a false statement of fact, and the plaintiff has 11
to be able to show that the defendant made that false 12
statement of fact with the appropriate mental state. All 13
of the documents that they’ve filed they don’t even 14
actually quote anything in the report. The, the 15
complaint, as to the report the complaint, you know, has 16
219 separate paragraphs that they say are false. It takes 17
45 single-spaced pages but there’s nothing that says we, 18
there’s a specific statement and that statement was made 19
with actual malice and just for that reason, the 20
plaintiffs have failed to meet their burden. 21
And my final point, Your Honor, on the motion is 22
that with regard to arbitration, again, the Sidley case, 23
the cases involving Sidley Austin that plaintiff cited in 24
the reply brief involve other jurisdictions and those 25
34
cases did rule against Sidley under a different equitable 1
estoppel standard and in all of those cases, there was no 2
discovery. The Court ruled based upon the law, the 3
agreement that contained the arbitration provision, and 4
the allegations of the complaint and as I said in that 5
law, the Court doesn’t look to other agreements that 6
happened later. It’s just the, the, the intertwining is 7
the agreement that has the arbitration provision. Thank 8
you, Your Honor. 9
THE COURT: Thank you. Ms. Wahl? 10
MS. WAHL: Briefly, Your Honor. I don’t know 11
what Ms. Forrest is talking about the Schein case saying 12
let’s leave things to another day. It’s absolutely 13
unambiguous. The Court said, quote, to be sure before 14
referring a dispute to an arbitrator, the Court determines 15
whether a valid arbitration exists. But if a valid 16
agreement exists and if the agreement delegates the 17
arbitrability issue to an arbitrator, a Court may not 18
decide the arbitrability issue. No question that here 19
there’s an arbitration delegation. The AAA Rules, which 20
are referred to in the parties’ employment agreements, and 21
the employment is referred to in the complaint at 22
paragraphs 40 and paragraph 43, they are appropriately 23
incorporated by reference. AAA Rules say with regard to 24
jurisdiction of the arbitrator, Rule 7(a), the arbitrator 25
35
shall have the power to rule on his or her own 1
jurisdiction, including any objections with respect to the 2
existence, scope, or validity of the arbitration agreement 3
or to the arbitrability of any claim or counterclaim. 4
They agreed to that. 5
With regard to Dr. Newman and this fictional, 6
additional agreement, Ms. Forrest says that he was 7
employed by an affiliate, the APA Practice Organization, 8
which was a 501(c)(6). It is, in fact, separately 9
incorporated. It is not a defendant in this case. It is 10
an advocacy group and to the extent that there are any 11
claims about Dr. Newman himself in the complaint, it is 12
that he was defamed because he did, in fact, disclose that 13
there was a conflict of interest between himself and his 14
wife being involved with the same task force back in 2005 15
when he was an APA employee. He was attending that 16
conference not as an advocate, not as a lobbyist, but as 17
an APA employee, so that’s just a red herring. The 18
defendants, we have properly provided all of the 19
employment agreements that pertain to this case. 20
Dr., Dr. Forrest referred to a waiver in the 21
Khan (phonetic sp.) case, and the Khan case says as soon 22
as you file a Rule 56 motion, there is a waiver. I will 23
quibble with that, with her about that at some point, but 24
we did not file a Rule 56 motion. We filed an anti-SLAPP 25
36
motion, and the reason we did it was because we had to. 1
The question about whether you could go past the statutory 2
timeframe is open in the District of Columbia, and we did 3
not want to risk that by getting extension, getting an 4
extension of time. We might have had a problem down the 5
road by somebody saying well you’ve done it too late. Ms. 6
Forrest referred to arbitration being narrowed by a group 7
of federal cases. Obviously we don’t agree with that 8
interpretation. We’ll get to that at some point but not 9
for today. 10
Dr. Soltz (phonetic sp.) and his deposition is 11
one thing we haven’t talked about. Dr. Soltz has been a 12
bit of a moving target in the plaintiffs’ five different 13
briefs. He is not a party here. He is in the 14
Massachusetts case. In their original filing on November 15
30, 2017, they said we need to have Dr. Soltz’s deposition 16
because he’s the one who leaked the report. We have 17
evidence that he’s the one who leaked the report, and we 18
need to confirm that. Now in the January 8, 2019, 19
document that they filed, they’ve said, no, no, we need 20
Dr. Soltz’s information because there’s some tie between 21
him and APA, and he might be relevant for actual malice 22
purposes. There’s no need for Dr. Soltz’s deposition one 23
way or the other either on actual, well I guess he’s being 24
submitted for so-called actual malice. He was not even a 25
37
member of APA management during all the operative times 1
here so even if he did all the dastardly things that the 2
plaintiffs have alleged that he’d, he’s done, that’s still 3
not a tie to APA. He was not a member of the counsel. He 4
was not a member of the board. He was an APA member but 5
there’s no indication, there’s not even any allegation in 6
the even the supplemental complaint that you just allowed 7
that indicates that he told APA’s management or special 8
committee anything about that would indicate there was 9
improper, something improper going on. So we would 10
submit, Your Honor, that again there’s no need for any of 11
this, this discovery. 12
THE COURT: Ms. Forrest, anything you’d like to 13
say that you haven’t said already? 14
MS. FORREST: No, thank, Your Honor. 15
FINDINGS OF THE COURT 16
Thank you. The issue to resolve today is the 17
request for limited discovery on the one hand to address 18
the motion to dismiss under the D.C. Anti-SLAPP Act; on 19
the other hand, to respond to the arbitration, I’m sorry, 20
to the motion to compel arbitration. The D.C. Anti-SLAPP 21
Act provides D.C. Code Section 16-5502(c)(2), quote, when 22
it appears likely that targeted discovery will enable the 23
plaintiff to defeat the motion and that the discovery will 24
not be unduly burdensome, the Court may order that 25
38
specified discovery be conducted. Such an order may be 1
conditioned upon the plaintiff paying any expenses 2
incurred by the defendant in responding to such discovery. 3
As far as D.C. Superior Court Rule of Civil Procedure 4
55(d) is concerned, quote, when facts are unavailable to 5
the non-movant, if a non-movant shows by affidavit or 6
declaration that for specified reasons it cannot present 7
the facts essential to justify its opposition, the Court 8
may (1) defer considering the motion or deny it; allow 9
time to obtain affidavits or declarations or to take 10
discovery; or (3) issue any other appropriate relief. 11
These matters are committed to obviously based on the 12
language the sum discretion of the trial Court. 13
Now as far as ensuring that the process afforded 14
in this case is fair to everybody who is part of this 15
conversation is concerned, the motion for limited 16
discovery will be granted in part and denied in part. As 17
far as the discovery relevant to the Anti-SLAPP motions, 18
the request is granted as to the four interrogatories as 19
to the mirror-image copy of all electronic data contained 20
on the personal computer and hard drive of Dr. Behnke. As 21
far as the notes that were generated, the discovery will 22
be limited to any notes from interviews or communications 23
with the 18 witnesses from whom the plaintiffs have 24
received affidavits; otherwise, the request for additional 25
39
notes generated in preparing the report is denied. Any 1
other requests related to the Anti-SLAPP motion as far as 2
discovery is concerned is denied but for the depositions. 3
Let’s talk about the depositions. You said at this point 4
you’re withdrawing your request to depose Dr. Jennifer 5
Kelly, is that correct? 6
MS. FORREST: That’s correct, Your Honor. 7
FINDINGS OF THE COURT 8
All right, the request to depose Dr. Heather 9
O’Beirne Kelly is granted. Your request to depose Dr. 10
Michael Honaker is granted but will not include anything 11
related to arbitration because that would be extraneous 12
evidence to the agreement and doesn’t seem to be 13
appropriate here. The request to depose Dr. Soltz is 14
granted. As far as the discovery relevant to the 15
arbitration motions, the request for any employment 16
agreements with Dr. Behnke and any employment agreements 17
with Dr. Newman are granted; otherwise, they’re denied. I 18
understand that these are five individuals who are suing 19
two large institutions; however, they’ve been able to do 20
so simultaneously in three jurisdictions, so any discovery 21
that has been authorized to occur today will occur at the 22
expense of the plaintiffs. 23
So my understanding is that there are various 24
additional matters that require setting some deadlines. 25
40
Obviously the discovery, the limited discovery, needs to 1
occur before both the motion to dismiss under the D.C. 2
Anti-SLAPP Act and the motion to compel arbitration are 3
resolved, so how much time are we talking about before you 4
can file your opposition to the Anti-SLAPP request? 5
MS. FORREST: We’re happy to do that within 6
eight weeks of completing the discovery and obviously the 7
discovery they’re going to have to produce it so whatever 8
date they say they’ll say produce discovery, within eight 9
weeks we’re prepared to file both oppositions, Your Honor, 10
understanding Your Honor will have two additional motions 11
and they are both a choice of law motion and a private 12
individual motion. 13
THE COURT: Let me ask you something. 14
MS. FORREST: Yes, Your Honor. 15
THE COURT: Is it your position that if the D.C. 16
Anti-SLAPP legislation does not apply for whatever reason, 17
that the applicable law would be the Illinois Anti-SLAPP 18
provision? 19
MS. FORREST: Illinois or Massachusetts, most 20
likely Illinois because they agreed in their agreement 21
that Illinois law would apply to any matters under their 22
engagement. Correct, Your Honor. 23
THE COURT: Thank you. Ms. Wahl, did you want 24
to say anything? 25
41
MS. WAHL: Yeah, I’m, I’m sorry, Your Honor, and 1
I know we’re on scheduling. I, I wanted to clarify 2
something. I believe that Ms. Forrest said that they 3
withdrew their request for interrogatories from APA. 4
THE COURT: You did? 5
MS. FORREST: We said that if they would 6
stipulate to what we provided in our motion, Your Honor, 7
and that’s the stipulation of our expert that, in fact, 8
the metadata from The New York Times article online shows 9
that, in fact, it was given. The last people in, in the 10
document were Mr. Hoffman (phonetic sp.) and that the 11
inference is, therefore, that he leaked the document to 12
The New York Times. That’s relevant to actual malice 13
because there’s a specific case on point that says wide 14
distribution with the intent to create a criminal problem 15
or to go after criminal indictment would be equal to 16
actual malice. 17
THE COURT: The issue is whether or not there’s 18
a need to provide a response to those. Let me be precise 19
about the language interrogatories. Is that matter been 20
resolved or not? 21
MS. FORREST: That can be withdrawn if they 22
stipulate to our metadata expert. 23
MS. WAHL: Your Honor, I have no idea what she’s 24
talking about. 25
42
THE COURT: Well let me put it this way. The 1
motion to compel discovery is granted to include 2
responding to the four interrogatories unless the parties 3
agree otherwise. 4
MS. FORREST: Thank you. 5
MS. WAHL: Thank you. 6
THE COURT: Mr. Hentoff, did you want to say 7
anything? 8
MR. HENTOFF: Yes, Your Honor. Possibly in the 9
interest of time and, and to make this an orderly process, 10
I might propose that the parties present a stipulation 11
within several days to the Court about the schedule so we 12
can meet and confer and if we have some differences of 13
opinion, it can all be in one document that the Court can 14
just review and decide on. I, I have a couple of specific 15
points to make -- 16
THE COURT: When you’re talking about schedule, 17
are you talking about the discovery process, or are you 18
talking the scheduling order for the entirety of the case? 19
MR. HENTOFF: Just the discovery process, just 20
to get to the conclusion of the discovery process and, and 21
I would like to make a couple of points that are relevant 22
to this. The first is Ms. Forrest said is in addition to 23
our opposition to the Anti-SLAPP motion and in, to 24
plaintiffs’ opposition to the Anti-SLAPP motion, in 25
43
plaintiffs’ motion to invalidate the D.C. Anti-SLAPP Act, 1
Ms. Forrest said that plaintiffs also will file two 2
additional motions, a choice of law motion in that the 3
plaintiffs are not public officials or public figures. 4
Normally that’s just an opposition to an Anti-SLAPP motion 5
and if the plaintiffs really are saying that they’re going 6
to win on choice of law, if the plaintiffs are really 7
saying that they’re going to defeat our case on choice of 8
law, why isn’t that the first motion then? I mean I, I 9
don’t understand it. We’re, we’re talking about a lot of, 10
a lot of time and energy. 11
With regard to the schedule, what I would like 12
to propose and, and I could, you know, put it in a, in a 13
scheduling submission with the plaintiffs is just we’ll 14
proceed very timely but we want to have the opportunity to 15
interpose appropriate objections to the discovery the 16
plaintiffs are now allowed consistent with the Court’s 17
order so that our clients don’t risk waiving privilege but 18
totally consistent with the Court’s order. It’s just that 19
we’ll be producing documents that need to have a privilege 20
review and, you know, we can, we can do that. Given what 21
the Court’s order is, I’d like to be able to go back and 22
take a look at what we have for those 18 witnesses so I 23
can make a, a judgment about how long it’ll take to do 24
that review and plaintiffs, of course, have to give us the 25
44
18 affidavits. And then a related point, we’ll do this in 1
a timely fashion, Your Honor, but if documents are going 2
to be produced, we’re going to meet and confer with the 3
plaintiffs and propose a protective order to cover the 4
production of documents in this case. It’s especially 5
important where Dr. Behnke, who was the head of the Ethics 6
Department at APA, his entire hard drive is like 20 7
gigabytes of, of, you know, e-mails and things like that 8
and it has, you know, you know my understanding is it has 9
ethics investigations that never were made public. I mean 10
it’s, you know, it’s not a, I mean it’s a simple thing to, 11
to give it up but it’s, there’s a ton of, of, you know, e-12
mails on that that, that when he worked at APA, he was 13
responsible for but they, they don’t have anything to do, 14
you know, with this case. So it’s, it’s, it’s really a 15
giant production although I understand the Court has ruled 16
but I think the parties need to kind of figure out like 17
what they’re going to provide or, or what protective order 18
is required to, to, you know, protect the privacy of the 19
people who were involved. 20
So one additional point the plaintiffs filed a 21
supplemental complaint on, on February 8th, right? So 22
the, they have a new count in their supplemental complaint 23
regarding an August 2018 activity that they allege is a 24
republication. So I’d like to make a proposal about that 25
45
because that’s in the case now and I propose that we deal 1
with that as sort of its own thing. It’s a supplement. 2
It’s self-contained. We now have a clock running on us 3
under the D.C. Anti-SLAPP Act. We got 45 days and, of 4
course, we’re going to, you know, file our arbitration 5
motions as it relates to that one single count with those 6
new allegations and, and I’d suggest that we set a 7
schedule for dealing with that so that it, you know, as we 8
resolve the case, we resolve everything. 9
THE COURT: And what schedule do you suggest? 10
MR. HENTOFF: Well I think we could file our 11
motions in three weeks to address, to address the new 12
allegations, you know, while we’re doing everything else. 13
THE COURT: Let’s set a schedule to provide 14
limited discovery, okay? Let’s put aside any other 15
potential motions. How much time do you need to provide 16
the limited discovery that’s been approved? 17
MR. HENTOFF: I would like to be able to review 18
the documents and come back with a report to the Court 19
early, early next week. 20
THE COURT: Okay, because we’re talking about 18 21
witnesses. Do you know who those witnesses are? 22
MR. HENTOFF: No, that’s a mystery to us. I’m 23
anxious to find out. 24
THE COURT: Then you need to disclose the 25
46
identity of those witnesses. 1
MS. FORREST: Yes, Your Honor. 2
THE COURT: Okay. 3
MS. FORREST: Your Honor? 4
THE COURT: Yes, Ms. Forrest? 5
MS. FORREST: May I say one other thing? In 6
that 18, we haven’t included the plaintiffs, and we don’t 7
have plaintiffs’ witness interviews either. 8
THE COURT: You haven’t included the plaintiffs? 9
MS. FORREST: In those 18, correct. Those are 10
18 additional witnesses of the 148. The 148 includes five 11
of the plaintiffs and I didn’t include in that number -- 12
THE COURT: Sorry, you didn’t include them? 13
MS. FORREST: That doesn’t include affidavits 14
from the plaintiffs, but we would ask that the Court 15
consider also allowing us their witness interview notes. 16
THE COURT: You already have that information. 17
MS. FORREST: I don’t have what Mr. Hoffman has, 18
which is the interview notes that he disclosed in the 19
report and that he says they didn’t provide. 20
THE COURT: Seems to be cumulative of the 21
complaint that you filed in the information that was 22
available to you when you drafted that complaint, so the 23
request to include the notes from the plaintiff is denied. 24
MS. FORREST: Thank you. 25
47
THE COURT: Okay? Time is of the essence here 1
because the act requires that these matters be addressed 2
expeditiously so on the one hand, I want to make that the 3
parties have the information they need to fairly litigate 4
this case; on the other hand, it’s going to be as focused 5
as possible to comply with the time requirements. Today’s 6
the 8th. When are you willing to be back here? 7
MR. HENTOFF: Your Honor, sometime next week and 8
we can just do scheduling. 9
MS. FORREST: I don’t know that we need to do 10
scheduling here, Your Honor. I think we can try to do a 11
stipulation and work that out and submit it to the Court. 12
I don’t know that Mr. Hentoff was saying that we would be 13
here. As far as coming back, I would -- 14
THE COURT: Well I just want to make sure. I 15
don’t know what interaction is between you. I don’t want 16
you to walk out and then somebody calls chambers on Monday 17
saying we can’t agree which way is up and which way is 18
down so you tell me whether what you propose is 19
reasonable. 20
MR. HENTOFF: Your Honor, I think, I think it’s 21
a good idea because we can submit a joint stipulation and 22
where we have disagreements, we’ll just say, you know, 23
plaintiff says this and defendants say that and, and the 24
Court can decide. 25
48
MS. FORREST: I guess, Your Honor, I’m more 1
inclined to just say let’s give them two or three months 2
for discovery. We’ll brief eight weeks. I can’t imagine 3
that discovery would take more than three months. 4
THE COURT: Are you talking eight weeks after 5
discovery concludes? 6
MS. FORREST: Correct, because I don’t know how 7
much they’re going to produce. That’s the point. I’m 8
giving you the broadest because I don’t know what they’re 9
going to produce because they’ve now said that we’ve going 10
to, they’re going to have various protective orders, et 11
cetera. 12
THE COURT: Ms. Wahl? 13
MS. WAHL: Oh, Your Honor, the, the, Dr. 14
Behnke’s e-mails and this imaging is going to be, it’s 15
going to pose some challenges. I don’t know. I, I trust 16
Dr., I mean Mr. Hentoff’s statement about it being so many 17
gigabytes but I do know that we have to for privacy 18
reasons be very careful about that and we can’t just turn 19
it over with a claw back. We’re going to have to review 20
the materials in there. I don’t have any idea whether 90 21
percent of it’s related to this case or 20 percent of it, 22
but we do need enough time to be able to do that. 23
THE COURT: Is there any way to sort of focus 24
which information within Dr. Behnke’s personal computer 25
49
and hard drive should be turned over? 1
MS. FORREST: Your Honor, just to sort of tie 2
the loop on that, LDiscovery, which is now Kroll, imaged 3
Mr. Behnke’s hard drive on the evening of February 5th 4
during the investigation. All of his, yeah, evidence, all 5
of his hard drive with no confidentiality protections or 6
anything else that they’re now alluding to were given to 7
Mr. Hoffman full-fledged, so it’s all part of the 8
investigation. 9
THE COURT: So if you have it all, why can’t 10
they have it all? 11
MS. WAHL: Because, Your Honor, as Mr. Hentoff 12
said, part of what Dr. Behnke’s job was was to review 13
ethics complaints and the process within APA is that 14
sometimes ethics complaints are filed for political 15
reasons, nonpolitical reasons, and the subjects of those 16
investigations were sometimes not told. In fact, they’re 17
not told, so he may have material on his database that the 18
subjects of these complaints don’t even know about. 19
THE COURT: Wouldn’t a protective order take 20
care of that? 21
MS. WAHL: I would hope so but we need to 22
negotiate that and we need to be careful about that and 23
everything that was imaged by this group L was provided 24
only to counsel. It’s not like, you know, we took out an 25
50
ad and said here’s all of Dr. Behnke’s Rue La La ad e-1
mails that he receives. It’s, some of it’s going to be 2
chaff and some of it’s going to be important and I can’t 3
in good faith say that we can just give them everything 4
and then we’ll argue about it. We could -- 5
THE COURT: I understand but when you give it 6
over, can’t a protective order be part of what you give 7
over? 8
MS. WAHL: It -- 9
MS. FORREST: Absolutely, absolutely we’ll agree 10
to that. 11
MS. WAHL: It, it could be, and I would 12
certainly entertain the idea that we could talk about 13
search terms. That would be fine but until I know what’s 14
in there and I don’t know what’s in there. For example, I 15
don’t know that there aren’t some very sensitive issues 16
related to U.S. security. I don’t know that one way or 17
the other but if there are, I think I at least need to get 18
a handle on what there is. 19
MR. HENTOFF: So, Your Honor, so I think this is 20
an example of where we could benefit from having a little 21
bit of time to meet and confer and -- 22
MS. WAHL: Yeah. 23
THE COURT: -- issue a report. For instance, I 24
know the plaintiffs have a theory, okay, that there are 25
51
deleted e-mails that a, that an additional investigation 1
could, could show so, for instance, part of the meet and 2
confer we could say, okay, you can get your own 3
independent expert, right? The independent expert signs a 4
confidentiality, the confidentiality. Independent expert 5
makes a judgment and sees if that, that person can find 6
the e-mails so that’s just an idea that I just had. So I 7
think we could without taking the Court’s time give us a 8
little time to talk among ourselves and issue a report to 9
the Court. 10
THE COURT: You’re not taking up my time. This 11
is what I’m supposed to do. 12
MR. HENTOFF: All right. 13
THE COURT: So tell me when you want to come 14
here to let me know where things are? 15
MR. HENTOFF: In, in that case, Your Honor, I, I 16
would say we could come back for another status report two 17
months or three months and see where we are. 18
THE COURT: I will see you on February the 14th 19
at 9:30, and you let me know where things are in terms of 20
your conversations regarding what’s going to be turned 21
over with what necessary protective steps and if you can’t 22
figure it out, then I’ll figure it out for you because 23
that’s what I’m supposed to do. 24
MR. HENTOFF: Thank you, Your Honor. 25
52
THE COURT: Okay? 1
MS. FORREST: Thank, Your Honor. 2
THE COURT: Is there anything else, any other 3
issues? February 14th at 9:30, thank you. 4
MS. FORREST: Thank, Your Honor. 5
MS. WAHL: Thank you. 6
THE DEPUTY CLERK: By order, this Honorable 7
Court now stands adjourned. Parties, you are excused. 8
(Thereupon, the proceedings were concluded.) 9
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√ Digitally signed by Janet Steinbach
ELECTRONIC CERTIFICATE
I, Janet Steinbach, transcriber, do hereby
certify that I have transcribed the proceedings had and
the testimony adduced in the case of STEPHEN BEHNKE, ET
AL. V. SIDLEY AUSTIN, LLP, ET AL., Case No. 2017 CAB
005989 in said Court, on the 8th day of February 2019.
I further certify that the foregoing 52 pages
constitute the official transcript of said proceedings as
transcribed from audio recording to the best of my
ability.
In witness whereof, I have hereto subscribed my
name, this 12th day of February 2019.
Transcriber
Deposition Services, Inc.
12321 Middlebrook Road, Suite 210 Germantown, MD 20874
Tel: (301) 881-3344 Fax: (301) 881-3338 [email protected] www.DepositionServices.com
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
- - - - - - - - - - - - - - - x
STEPHEN BEHNKE, ET AL., : Docket Number: 2017 CAB 005989
:
Plaintiffs, :
:
vs. :
:
SIDLEY AUSTIN, ET AL., :
:
Defendants. : Friday, September 6, 2019
- - - - - - - - - - - - - - - x Washington, D.C.
The above-entitled action came on for a hearing
before the Honorable HIRAM E. PUIG-LUGO, Associate Judge,
in Courtroom Number 317.
APPEARANCES:
On Behalf of the Plaintiffs:
BONNY FORREST, Esquire
Washington, D.C.
On Behalf of Defendant Sidley Austin:
THOMAS G. HENTOFF, Esquire
Washington, D.C.
ALEXANDER J. KASNER, Esquire
Washington, D.C.
On Behalf of Defendant American
Psychological Association:
BARBARA S. WAHL, Esquire
Washington, D.C.
19-04446
APPEARANCES CONTINUED:
KAREN ELLIS CARR, Esquire
Washington, D.C.
On Behalf of the Intervenor:
ANDREW J. SANDON, Esquire
Washington, D.C.
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3
P R O C E E D I N G S 1
THE DEPUTY CLERK: Now calling number 18, 2
Stephen Behnke, et al. versus Sidley Austin, LLP, et al., 3
case number 2018 CA 005989, Docket Number 18. 4
(Pause.) 5
THE COURT: Okay. All right. Parties, state 6
your names for the record, beginning with the plaintiffs. 7
MS. KITTON: Fara Kitton. 8
THE COURT: I'm sorry, what did you say? 9
MS. KITTON: Fara Kitton. 10
MS. FORREST: Bonny Forrest, Your Honor. 11
THE COURT: Ms. Forrest. 12
MR. HENTOFF: Your Honor, Thomas Hentoff with 13
Alex Kasner for the Sidley defendants. 14
THE COURT: Mr. Hentoff. 15
MS. WAHL: Barbara Wahl on behalf of the 16
American Psychological Association. With me is my 17
partner, Karen Carr, and Dianno Taviano (phonetic sp.), 18
who is the general counsel of this psychological 19
association. 20
THE COURT: Okay, thank you. Who else? 21
MR. SANDON: Good morning, Your Honor. Andrew 22
Sandon on behalf of intervenor District of Columbia. 23
THE COURT: Anybody else from the District? 24
MR. SANDON: No, sir. 25
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4
THE COURT: Okay, thank you. Where are things 1
at when it comes to litigation in other jurisdictions? 2
MS. FORREST: We're on hold in Massachusetts, 3
Your Honor. We filed, as we said in our praecipe that we 4
filed with the Court on Tuesday, we filed the motion 5
solely to supplement that complaint, come consistent with 6
the complaint here, Your Honor, and file the -- a cause of 7
action against what we allege is a republication. The 8
defendants have asked us for an extra month of time to 9
respond to that, which I, depending on the schedule today, 10
I think we're inclined to give them. But that there's a 11
stay in place. We have a status conference with that 12
judge October 29th, I believe it is, Your Honor. 13
THE COURT: When you say amended complaint, 14
that's only in Massachusetts or -- 15
MS. FORREST: Supplement the complaint. 16
THE COURT: Supplement. 17
MS. FORREST: To make it consistent. If Your 18
Honor remembers, January 8th, we supplemented the 19
complaint here. We have not supplemented the complaint in 20
Massachusetts. We told the Court we were going to do 21
that, but we were trying to delay that. 22
THE COURT: All right. So, I'm simply trying to 23
determine whether there's any supplemental pleadings, as 24
far as this litigation is concerned in the District of 25
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5
Columbia. 1
MS. FORREST: There was on January 8th. 2
THE COURT: But that's already been done? 3
MS. FORREST: Correct. 4
THE COURT: At least of -- 5
MS. FORREST: As of right now, no. The next on 6
docket is the discovery. 7
THE COURT: Okay. Now, there are five pending 8
motions that have been stayed. Four of them relate to 9
ANTI-SLAPP litigation. The fifth one is a motion a motion 10
to declare the D.C. ANTI-SLAPP Act void and 11
unconstitutional. Other than Massachusetts, is there 12
litigation pending or ongoing in any other jurisdiction? 13
MS. FORREST: No, Your Honor. 14
THE COURT: And please remind me because it's 15
been a while, what happened in Ohio? 16
MS. FORREST: Ohio, the Supreme Court did not 17
take the case, Your Honor. It was only solely on the 18
issue of jurisdiction. 19
THE COURT: So what did the trial court rule in 20
Ohio? 21
MS. FORREST: The trial court ruled that the 22
plaintiffs -- because the plaintiffs -- there wasn't 23
enough contacts between plaintiffs in the jurisdiction, 24
that in fact, that this was -- and based on 25
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6
representations of the defendants -- that D.C. was the 1
superior. That this should be -- it should be litigated 2
somewhere else, not Ohio. 3
THE COURT: Now, when it comes to choice of law, 4
what is your position, Ms. Forrest? 5
MS. FORREST: A couple things, Your Honor. 6
First of all, we believe -- 7
THE COURT: Well, let me, let me focus the 8
question. Because I don’t want to open it -- I don’t want 9
the doors to open wide. Which law do you believe should 10
be applicable here? 11
MS. FORREST: Illinois. 12
THE COURT: Is the jurisdiction here premised on 13
diversity? 14
MS. FORREST: No. 15
THE COURT: Would the application of Illinois 16
law stem from any agreement between the parties? 17
MS. FORREST: Yes. 18
THE COURT: What would that agreement be? 19
MS. FORREST: The defendants, in their 20
engagement letter, agreed that Illinois would apply to any 21
issues with respect to the engagement between Sidley and 22
APA. I'm not quoting verbatim, Your Honor, from the 23
document. I'd have to pull it up. 24
THE COURT: Okay. Is that correct, Mr. Hentoff? 25
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7
MR. HENTOFF: Your Honor, no. The defendants 1
have not agreed that Illinois would apply in this case. 2
THE COURT: May I see the document that you 3
maintain supports your position, Ms. Forrest? 4
(Pause.) 5
MS. FORREST: The choice of law provision in the 6
Sidley engagement letter -- 7
THE COURT: May I please see the document? 8
MR. HENTOFF: Your Honor, may I approach? 9
THE COURT: Yes, sir. 10
MR. HENTOFF: Okay. I'm going to try to make 11
this easier to read. Your Honor, it's governing law and 12
choice of forum. 13
THE COURT: 14
"This letter shall be governed 15
by and construed in accordance 16
with the laws of the State of 17
Illinois. Any claim or rights 18
under and relating to this 19
engagement letter shall only be 20
brought in the state or federal 21
courts in such state, and the AP 22
and Sibley each agree to submit 23
to the jurisdiction of such 24
courts." 25
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8
So, based on what you're telling me, it -- if your reading 1
is correct, this litigation should be in Illinois, not 2
even here. 3
MS. FORREST: We agree. That's part of the 4
reason we brought it out of the Midwest. But we did it on 5
the context based on the jurisdiction -- 6
THE COURT: But you didn't -- I'm sorry, the 7
problem is that your actions are inconsistent with what 8
you maintain today. Because you file a lawsuit in Ohio. 9
You file a lawsuit in Massachusetts. You file a lawsuit 10
in the District of Columbia. And you don't go anywhere 11
near Illinois, other than Ohio. So -- 12
MS. FORREST: Your Honor, if I may? 13
THE COURT: Yes. 14
MS. FORREST: The defendants asked to be sued in 15
D.C. and they said that's the place they would consent to 16
jurisdiction. And I'm happy to show you where that is. 17
Otherwise, we would have gone to Illinois as opposed to 18
Ohio. But it's the only place where we felt we could get 19
jurisdiction over the parties. 20
THE COURT: But they didn't consent to applying 21
Illinois law to jurisdiction to litigation brought to the 22
District of Columbia, did they? 23
MS. FORREST: But I don't think -- no. 24
THE COURT: No. 25
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9
MS. FORREST: The answer is no. 1
THE COURT: Okay. 2
MS. FORREST: But I don't think that changes the 3
choice of law of what applies to interpret -- what law 4
applies to the issue. 5
THE COURT: Well, how would the -- you're 6
talking about the ANTI-SLAPP litigation, correct? 7
MS. FORREST: Correct. 8
THE COURT: So why did you file a motion 9
contesting the constitutionality of the D.C. ANTI-SLAPP 10
statute? 11
MS. FORREST: Because that's all they argued in 12
their motion. They didn't argue that Illinois -- they 13
argued in Ohio -- 14
THE COURT: You're the one who filed -- 15
MS. FORREST: -- that there was a choice of law 16
analysis necessary. 17
THE COURT: You're the one who filed the motion 18
to declare the D.C. ANTI-SLAPP void and unconstitutional, 19
not them. 20
MS. FORREST: Right. 21
THE COURT: Right. 22
MS. FORREST: Because that was in response to 23
their ANTI-SLAPP motion, which doesn't do a choice of law 24
analysis. Since the first document in this case was filed 25
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10
by us on 10/18, and in the complaint, we allege that 1
Illinois law applies. 2
THE COURT: So tell me how applying the Illinois 3
law would make a difference in the outcome here. 4
MS. FORREST: Illinois has said that if you're 5
regressing your rights under the First Amendment to the 6
Constitution, that in fact, you can't apply the Illinois 7
statutes. They've already gone through the constitutional 8
analysis. They've said -- 9
THE COURT: Are you saying that the courts in 10
Illinois have found their ANTI-SLAPP law unconstitutional? 11
MS. FORREST: They've modified it to withhold -- 12
to make it upstand constitutionality. So it's the exact 13
argument that we're bringing here about the D.C. sector, 14
Your Honor. 15
THE COURT: But again, tell me what impact 16
Illinois law would have on litigation here. 17
MS. FORREST: SLAPP wouldn't apply. 18
THE COURT: I'm sorry? 19
MS. FORREST: SLAPP wouldn't apply to this case. 20
It would proceed through the rules of civil procedure 21
normally. We'd get full discovery. You wouldn't have a 22
motion before you which makes a claim in a truncated 23
proceeding that my folks have to prove a higher standard. 24
And you'd go through the regular process of the D.C. Rules 25
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11
of Civil Procedure, Your Honor. 1
THE COURT: So, let me see if I got this right. 2
You're saying that the Illinois courts have held that 3
ANTI-SLAPP -- their ANTI-SLAPP statute does not apply when 4
a person's exercising their First Amendment rights? 5
MS. FORREST: You're right. That's correct, 6
Your Honor. Sand Home v. Cook Home (phonetic sp.), and I 7
cite it in our papers, Your Honor. 8
THE COURT: But that doesn't make any sense, 9
because that's what ANTI-SLAPP litigation is all about. 10
It’s the exercise of First Amendment rights. But then you 11
tell me that they're -- they still continue to have an 12
ANTI-SLAPP provision in their, in their code? 13
MS. FORREST: It's basically not used very much. 14
Same thing in Massachusetts, same thing in Maine, Your 15
Honor. Every federal circuit that's had a look at this 16
has ruled this is procedural and has a problem. Most of 17
them have ruled it conflicts with the Federal Rules with 18
the exception of the D.C. Court of Appeals. And the First 19
Circuit, which says it's procedural as well. So, a lot 20
has changed since we filed that motion. And the case law 21
has changed dramatically in our favor. Within the First 22
Circuit, Maine has found the First Amendment right to 23
petition of plaintiff's has to be considered. As has 24
Massachusetts. As -- New Hampshire has said nothing at 25
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12
all. 1
THE COURT: Right. But what you're basically 2
saying -- let's put all that aside. 3
MS. FORREST: Yeah. 4
THE COURT: Because everything we're talking 5
about relates to what impact the law in Illinois, if we 6
use it, would have on this litigation. But you're -- what 7
essentially saying is that the parties agreed to use 8
Illinois law in litigation. 9
MS. FORREST: Illinois applies to anything 10
relating to the engagement letter, which this lawsuit 11
relates to Hoffman's engagement. They agreed in advance 12
that Illinois law applies. And if Illinois law applies, 13
their SLAPP statute, they have not argued -- they've only 14
-- they assumed in the motion here, unlike what they filed 15
in Ohio, they assumed D.C. was applying. I immediately 16
filed something with the Court that said no, that's wrong, 17
that's not what applies. That was October 18th. And 18
said, this is Sand Home v. Cook Home, Your Honor. This 19
doesn't apply. 20
THE COURT: So, your answer is yes. You're 21
hanging your hat on the fact that the engagement letter 22
provides for Illinois law to apply. 23
MS. FORREST: That's only part of the analysis. 24
This is Defacage (phonetic sp.) and that's what D.C. 25
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follows. And it's a complicated analysis but that's part 1
of it. 2
THE COURT: It ain't that complicated, Ms. 3
Forrest. 4
MS. FORREST: Choice of law analysis, we, we 5
think it's a fairly complicated issue, if you think it's 6
not, Your Honor. 7
THE COURT: There's an engagement letter. 8
MS. FORREST: Okay. 9
THE COURT: And it seems to me -- like, frankly, 10
that's why I asked you all those other questions. Because 11
as far as this choice of law dispute, it's very 12
straightforward. So, what are we going to do with the 13
pending motions? 14
MR. HENTOFF: Your Honor, may I respond to a 15
couple of the points that were just discussed? 16
THE COURT: Yes, sir. 17
MR. HENTOFF: All right. First, let me just 18
back up a little bit. And there is one more proceeding. 19
The Court in the spring granted defendant's motion that 20
plaintiffs Banks and Newman must arbitrate their claims. 21
THE COURT: Correct. 22
MR. HENTOFF: And in late August, the -- those 23
two plaintiffs did serve on -- did file and serve an 24
arbitration demand. So I just wanted to note that. 25
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Secondly, the choice of law provision, by contract 1
regarding two parties to the contract, does not govern the 2
choice of law either on plaintiffs' torts -- plaintiffs, 3
strangers to the contract, their tort claims against 4
Sidley and APA. And it doesn't govern a choice of law 5
under -- when ANTI-SLAPP Act applies. 6
THE COURT: So, what you're saying here is that 7
neither Banks, Dunvin, or James were parties to that 8
engagement law -- 9
MR. HENTOFF: Correct. 10
THE COURT: -- I mean, the engagement letter? 11
MR. HENTOFF: That's correct. 12
THE COURT: Okay. What it seems that engagement 13
letter looks like, Ms. Forrest, is that if any dispute 14
arose between Hoffman and Sidley Austin means that any 15
dispute between them -- I know you're shaking your head, 16
but I'm letting you know what we're going to do. Okay? 17
We're going to set briefing schedules for the pleadings 18
that need to be filed. If you want to raise the choice of 19
law concern, Ms. Forrest, you can do so within the context 20
of the response that you filed regarding the motion to 21
dismiss under the D.C. ANTI-SLAPP Act. But for the sake 22
of efficiency, be concise and brief about it. Another 23
issue that you have put on the table has to do with 24
whether plaintiffs Banks, Dunvin, and James are private 25
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individuals or public figures. Is that correct? 1
MS. FORREST: That's correct, Your Honor. 2
THE COURT: Now, as I understand it, all three 3
of them are -- or were, at the time, high ranking 4
officials within the Army, different aspects of the Army. 5
Is that correct? 6
MS. FORREST: That's incorrect, Your Honor. 7
THE COURT: So Banks was not Director of 8
Psychological Application for the Army's Special 9
Operations Command? 10
MS. FORREST: The relevant time is the time of 11
the publication of the report. They were all retired at 12
that point. 13
THE COURT: Okay. Did Dr. Banks ever fill that 14
position? 15
MS. FORREST: What was the title? Because the 16
title has been gotten wrong four or five times. 17
THE COURT: Director of Psychological 18
Applications for the Army's Special Operations Command. 19
MS. FORREST: Yes. 20
THE COURT: How about plaintiff Dunvin, Chief of 21
the Department of Psychology at Walter Reed Army Medical 22
Center? 23
MS. FORREST: Ten years prior to the whole 24
incident. 25
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THE COURT: Which incident? 1
MS. FORREST: That's the question, Your Honor. 2
That's part of the issue. What's the relevant date? 3
THE COURT: Well -- 4
MS. FORREST: It has nothing to with her time in 5
Guantanamo or Iraq. 6
THE COURT: Okay. Now, as far as plaintiff 7
James, Chief of the Department of Psychology at Walter 8
Reed Army Medical Center, Director of Behavior Science at 9
Abu Ghraib. Is that correct? 10
MS. FORREST: I don't think the title at Abu 11
Ghraib is correct. 12
THE COURT: Okay. What was the title at Abu 13
Ghraib? 14
MS. FORREST: I'd have to go back and get it, 15
Your Honor. Because there's three separate titles the 16
defendants have referred to in their papers. So I'd have 17
to get it correctly from Dr. James at the time. 18
THE COURT: Let's, let's put their job 19
descriptions aside. Did any of the three of them engage 20
in any discourse related to the applicability of special 21
measures or torture when it came to interrogations? Did 22
any of them engage in any dialogue or discussion regarding 23
the viability of those strategies? 24
MS. FORREST: I don't -- I want to make sure -- 25
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first of all, you have to understand something, Your 1
Honor. Some of these things are classified, so I'm not 2
even allowed to know them because I don't have 3
classification. So for me to represent to you, I have to 4
be careful. I do not believe that that's accurate. I do 5
know that they were given by generals, okay? Including 6
two Army Surgeon Generals, who are prepared to come and 7
testify at the hearing on this matter, that they were told 8
to implement policies on the ground. And the policy was 9
set at a very high level by the Surgeon General. And that 10
those policies were to be implemented with local regional 11
policies on the ground. And that that was after -- 12
THE COURT: So, you don't even know if your 13
clients were part of this conversation? 14
MS. FORREST: I can tell you that they were part 15
of the conversation to not implement those strategies. 16
THE COURT: Ms. Wahl, Mr. Hentoff, what are your 17
representations regarding your understanding? 18
MR. HENTOFF: Okay, Your Honor, a couple of 19
things. To determine a plaintiff's status as a public 20
official, the relevant time period is -- if there's, like, 21
a report or an article, it's the time the article was 22
writing about. So, if the report, as is the case, was 23
writing about a time when all three plaintiffs were, I 24
think lieutenant colonels in the Army, then that's the 25
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relevant period for the actual malice, actual malice 1
analysis, actual malice analysis. And we are prepared in 2
our reply brief to cite all the case law that establishes 3
that point. With regard to these plaintiffs' involvements 4
in the issues relating to enhanced interrogations, that's 5
a large part of what this report is about. You just need 6
to read the report, and read the complaint. And you see 7
that's -- that these plaintiffs were involved with that 8
conversation. 9
THE COURT: Which is what I was asking you, Ms. 10
Forrest. 11
MS. FORREST: I think you got a -- Your Honor, I 12
appreciate that. But what's happened on page six and 12 13
and 13 of their motion is they've cherry-picked portions 14
of the complaint. If you look at Paragraph 39, if you 15
look at Paragraph 41, if you look at Paragraph 42, if you 16
look at Paragraph 221, if you look at Paragraph 222 -- 17
THE COURT: Are you talking about the complaint? 18
MS. FORREST: Yes, I am, Your Honor. 19
THE COURT: Okay. Please continue. 20
MS. FORREST: If you look at each of those, 21
what's done is they've cherry-picked portions of that to 22
say people drafted policies and were senior officials. 23
They weren't. Let me go back to a moment, something Mr. 24
Hentoff said. Mr. Hentoff will have his cases. I have a 25
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19
Supreme Court case that leaves open the time period very 1
specifically and says, we don’t know what the time period 2
is, but we're not deciding it for you. So that's why, 3
Your Honor, we think that deserves a separate motion. 4
THE COURT: Wait, they didn't decide it? 5
MS. FORREST: They didn't decide it. 6
THE COURT: Okay. 7
MS. FORREST: That's why the issue, we believe, 8
is what the -- and so, we believe they were retired at the 9
time. But even if you didn't, let's assume for a minute 10
you decide against me. Okay? Let's assume for a minute 11
it's a different time period. They don't have the status. 12
They're never the level of public official. The 13
defendants have cited five cases in their brief. None of 14
which are at the level of a lieutenant colonel, that these 15
folks -- that they allege that they are. They just 16
weren't. 17
THE COURT: You don’t have a -- you don't need a 18
rank and you don't need a job title to insert yourself 19
into a matter of public discourse, and in the process, 20
make yourself a public figure. 21
MS. FORREST: That's actually the test for a 22
limited purpose public figure, Your Honor. The test for a 23
public official -- 24
THE COURT: Then why wouldn't be -- 25
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20
MS. FORREST: -- is somewhat different. 1
THE COURT: Then why wouldn't there be a 2
limited, a limited purpose public -- 3
MR. HENTOFF: Your Honor -- 4
MS. FORREST: They haven't alleged that in their 5
motion, Your Honor. They've alleged that they're public 6
officials. 7
THE COURT: But I have to apply the law of the 8
District of Columbia. Isn't that in the statute? 9
MS. FORREST: No. 10
MR. HENTOFF: Your Honor, may -- 11
MS. FORREST: No. 12
MR. HENTOFF: Can I clarify? 13
THE COURT: Yes, sir. 14
MR. HENTOFF: So there's two things, Your Honor. 15
There's, there's the question of, in the statute, there's 16
the threshold requirement where the -- I'm sorry, where 17
the defendant, we have to make a showing that our speech 18
is a -- on a matter of public concern. And one of the 19
ways in which we can do it is that our speech concerned 20
public figures. So Your Honor is correct. But there are 21
a lot of other ways in which we can establish that our 22
speech was on a matter of public concern. And we've laid 23
that our in our pending motion. Okay? So the second 24
question is, then the plaintiff has to establish that they 25
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21
can win -- you know, that they have a reasonable chance of 1
winning the case, et cetera. Right? And that's where we 2
say the plaintiffs -- the remaining plaintiffs are public 3
officials. And they cannot establish that Sidley or APA 4
acted with actual malice. So when we filed the motion, 5
there were five plaintiffs. We argued that three of them 6
-- the three colonels were public officials. And two of 7
them, the two former employees of the APA, were limited 8
purpose public figures. So, Your Honor, you'll see in our 9
motion we talked about both tests. And the test for 10
public official, I'm not going to get it exactly right, 11
but you had to have a certain amount -- you know, you work 12
for the government, you work for a government entity. And 13
you've a certain amount of impact over people's lives. 14
There's a particular test. I didn't say it exactly right. 15
But we laid it out in our brief. And my point is, we laid 16
it out in our brief as part of our ANTI-SLAPP motion. And 17
the plaintiffs should oppose it with all their best case 18
authority and then we'll reply. 19
MS. FORREST: We agree with that, Your Honor. 20
That's why we suggest we brief that. 21
THE COURT: Okay. 22
MS. FORREST: Because that's going to impact -- 23
THE COURT: You know, then you do it within the 24
context of filing your opposition to their motion to 25
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22
dismiss under -- 1
MS. FORREST: Here's the issue on -- 2
THE COURT: No. We're -- that's what we're 3
going to do. We're going to be efficient. We're going to 4
move this through. We're not going to have scattershot 5
litigation. I'm telling you right now that you can 6
address the issue, but you need to do -- address it within 7
that context. Because it would be essentially a defense 8
to, to the allegations that they're making in their motion 9
to dismiss. You look confused. Should I repeat what I 10
said or try to clarify it? 11
MS. FORREST: I -- Your Honor, I'm, I'm at a -- 12
sort of not certain what to do. Because I don't agree. 13
THE COURT: Okay. 14
MS. FORREST: I'm going to need to ask for 15
different pages. 16
THE COURT: Then -- okay. No. You don’t agree 17
with me, that's fine. But here's what you're going to do, 18
as far as this motion is concerned. Because like I said, 19
this is not going to be a scattershot litigation. You can 20
address the issue of whether or not your clients are 21
private or public figures. But you will do it within the 22
context of filing your opposition to their motion. 23
There's not going to be a separate parallel conversation 24
on that issue. You can disagree with me, that's fine. 25
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23
But I'm giving you a chance to raise the issue and make a 1
record about it. That's how we're going to do it. Okay? 2
So, let's set dates here. 3
MS. FORREST: So we have three depositions that 4
need to occur, Your Honor. 5
THE COURT: Okay. 6
MS. FORREST: And there's issues with respect to 7
those. So, we've tried to do, for example, an affidavit 8
for Dr. Honnacker (phonetic sp.) and Ms. Wahl objected to 9
that, would not allow him to sign an affidavit as opposed 10
to doing a deposition. 11
THE COURT: An affidavit's not a deposition. 12
You don’t get to ask questions of a witness who signs an 13
affidavit. 14
MS. FORREST: It would be a violation of his 15
contract and separation agreement, which he alleged to his 16
attorney, and that they would withdraw his ability to 17
collect payments under the agreement or hold him in a 18
problem with that agreement. So -- 19
THE COURT: A deposition's a deposition. It 20
needs to happen. 21
MS. FORREST: Thank you. 22
THE COURT: What else needs to happen as far as 23
discovery is concerned? 24
MS. FORREST: Two other depositions, one in 25
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24
Massachusetts, two in D.C. 1
THE COURT: The -- is that for Mr. Stephen 2
(phonetic sp.) -- 3
MS. FORREST: Dr. Solts (phonetic sp.). 4
THE COURT: Dr. Solts. 5
MS. FORREST: Correct. 6
THE COURT: Stephen Solts, right? 7
MS. FORREST: Correct. 8
THE COURT: Okay. He's not a party here, right? 9
MS. FORREST: Correct, but you ordered his 10
deposition on February 8th. 11
THE COURT: Okay. And what's happening with 12
that one? 13
MS. FORREST: We will notice it right after you 14
-- if you're -- assuming that you're okay with going 15
forward with depositions based on the order, great. We're 16
going forward. No discovery was allowed during this time 17
period. 18
THE COURT: How long will it take you to depose 19
Dr. Solts? 20
MS. FORREST: We would like to do all these 21
depositions in September. I've tentatively -- Ms. Kitton 22
is going to -- my apologies. Ms. Kitton is going to 23
notice these, go back and notice these on Monday. We're 24
noticing the dates the 17th, the 25th and 26th. Pending 25
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25
scheduling issues with the other side. The last time, Ms. 1
Wahl refused to accept service for a witness. I'm 2
assuming that that will not be an issue this time for Dr. 3
Kelly. That she will accept service. 4
THE COURT: Is that the third witness? 5
MS. FORREST: It will be either the 25th or 6
26th, Your Honor. 7
THE COURT: Right. So we're talking about Dr. 8
Solts and Dr. Kelly. 9
MS. FORREST: We also have Dr. Honnacker. 10
THE COURT: Right. 11
MS. FORREST: So we're going to notice three 12
dates. That's right now what we're planning. The last 13
time, Dr. Solts' counsel kicked up his heels and wanted to 14
put it off for a month. So. We will proceed. We're 15
prepared to proceed. That's why we're just going to 16
notice the dates, and if they want to object, they can 17
object. 18
THE COURT: Okay, thank you. Ms. Wahl? 19
MS. WAHL: Your Honor, we have given some 20
thought to a proposed schedule. Taking into account the 21
depositions. And I have a proposed schedule that I could 22
hand up to you, if that would be preferable. 23
THE COURT: Have you discussed that with Ms. 24
Forrest? 25
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26
MS. WAHL: I have not yet, but I can. 1
THE COURT: Please. 2
MS. WAHL: Okay. So -- well, I'll just hand 3
this over. And one to Mr. Sandon, to Ms. Forrest. So, 4
our proposal would be that discovery consistent with what 5
Ms. Forrest just proposes is the first we've heard of 6
this. That discovery would take place through October 7
9th. So, between September 9th and October 9th. That 8
seems consistent with what Ms. Forrest has said. Of 9
course, assuming that the witnesses are available. We 10
propose October 31st as the deadline for the plaintiffs to 11
file their opposition to the defendants' ANTI-SLAPP 12
motions. So those are the four that are -- that we filed 13
initially. Not the constitutionality, but the 14
straightforward ANTI-SLAPP motions. There are two on the 15
original complaint and two on the supplemental complaint. 16
That would -- so that would be the date when the 17
plaintiffs would file their opposition. That would also 18
be the date when the defendants and the District of 19
Columbia would file their oppositions to the plaintiffs' 20
constitutionality motion. So we get it all done at the 21
same time. Then the next deadline would be November 22nd. 22
And those would be the reply dates for the defendants to 23
file the replies in favor of their four ANTI-SLAPP 24
motions. And the plaintiffs would file the reply in 25
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27
support of their constitutionality motions. And then, 1
should the Court wish to have oral argument, which might 2
be helpful on this, we suggest that the Court set a date 3
in early 2020, January or February. 4
THE COURT: What's the District of Columbia's 5
position here? Since you're intervening in this matter. 6
MR. SANDON: Thank you, Your Honor. October 7
31st is fine for us to file our motion opposing the ANTI-8
SLAPP Act. 9
THE COURT: A motion to oppose declaring the 10
ANTI-SLAPP Act void and unconstitutional, right? 11
MR. SANDON: That's right, Your Honor. Ms. 12
Forrest? 13
MS. FORREST: I think that's fine, Your Honor. 14
I've got a procedural issue on filing our -- the October 15
31st motion, which I can talk to you about now or I can 16
talk to you about later. Your choice. 17
THE COURT: What do you want to do? 18
MS. FORREST: So, we have approximately 5,000 19
documents that we'll be submitting in support of that 20
motion What we've done right now is that if Your Honor is 21
aware of Exhibit A to the motion, which is all the 219 22
false statements. So, we have at least one, and sometimes 23
as many 20, documents that we're submitting that was in 24
APA or Mr. Hoffman's possession when he wrote the report. 25
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Which gave them knowledge that the -- what they were 1
writing is false. In case you rule against me and decide 2
I'd have to show actual malice, Your Honor. Okay? So I 3
have all that. What I've done -- but you're going to need 4
to tell me whether this will work for the Court -- is 5
right now, there's a fifth column and a sixth column. The 6
fifth one being, in that document -- or it's a fourth and 7
fifth. There's the fourth one that has we can put it all 8
up on a CD or we can put it up online. And we can make a 9
link to it so you can just -- we call it in California an 10
exploding brief. I don't really like that term. But you 11
could link in as opposed to me -- 12
THE COURT: It's an interesting concept. 13
MS. FORREST: Yeah. You can link into the 14
document and it's all online for you as opposed to me 15
submitting 5,000 documents. We can happily submit all the 16
documents in boxes. I'll bring them here myself to the 17
courthouse. But that way, you'd have it. The next column 18
goes to the admissibility, which we considered before we 19
ever filed the complaint. So, it speaks to either a 20
hearsay exception because it says -- because even though 21
the statute doesn't address it, because the D.C. Court of 22
Appeals has applies a Rule 56, sort of, standard to this 23
motion, it's got to be admissible evidence. So, we've 24
addressed the admissibility already in a proposed reply, 25
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Your Honor. 1
THE COURT: Okay. So, your procedural question 2
has to do with the format of the exhibits that you intend 3
to introduce. 4
MS. FORREST: Right. It -- it's going to be 5
right now -- that document is several hundred pages 6
without even the -- so the exhibit -- so Exhibit A, we've 7
pulled in all those documents. And so to do that, that 8
document is now several hundred pages itself. And that 9
will be an exhibit to our reply. 10
THE COURT: Mr. Hentoff and Ms. Wahl, who would 11
like to go first? 12
MR. HENTOFF: I'll go first, Your Honor. We 13
filed a 25 page brief with exhibits. If the plaintiffs 14
are going to file hundreds of pages with thousands of 15
exhibits, I don't think it's going to be possible to 16
respond to it in three weeks. 17
THE COURT: Yeah, that's -- that seems a little 18
bit over the top, Ms. Forrest. I'm sorry. 19
MS. FORREST: I'm not going to file the exhibit. 20
That's why I'm going to do it this way. But I have a 21
clear and -- if you rule against me on the actual malice, 22
I have a clear and convincing standard. And so, if they 23
want to waive any argument that I haven't submitted enough 24
information, Your Honor, I'll give up that fight. 25
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THE COURT: How long was the conversation 1
between the entities here? How long did this -- the stuff 2
that led up to the report which resulted in the litigation 3
once the report was made public. How long did the 4
dialogue go on? 5
MS. FORREST: the investigation was seven 6
months. The report itself is 546 pages. It's attached -- 7
a couple thousand worth of the pages of exhibits to that 8
report. So, that's what I have to go after, Your Honor. 9
The problem is, is that I'm going -- and the period of 10
time, they've brought in communications from 2005 and 11
2006. 12
THE COURT: Wait, wait a second. The ANTI-SLAPP 13
-- the discovery provisions of ANTI-SLAPP are limited. 14
We're not going to proceed with discovery as if this were 15
a hearing on the merits of the litigation. 16
MS. FORREST: I'm not proceeding with discovery, 17
this is all publicly available information that he had, 18
and he's -- most of it, he's put into binders and they've 19
put up on their website. 20
THE COURT: I understand that. But it's one 21
thing what people post online. It's another thing what's 22
evidence admitted in the litigation. And again, the 23
discovery provision of the ANTI-SLAPP legislation is 24
fairly limited. This is not a blow the roof off the case 25
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so we can consider everything that would have come in 1
during a trial on the merits. 2
MS. FORREST: I'm not aware, Your Honor -- I've 3
got a copy of the statute with me, which I'm happy to 4
share with you, that it limits what I can submit I 5
fighting motion. It just limits what depositions or 6
discovery I can take. This is -- 7
THE COURT: But it's discovery. 8
MS. FORREST: Right. So, why is, why is -- 9
THE COURT: Because your attachments are part of -- 10
MS. FORREST: They're not part of discovery. 11
THE COURT: Have those been exchanged with you? 12
Do you know what she's talking about? 13
MS. WAHL: I am completely lost, Your Honor. So 14
I appreciate you seeking -- 15
MS. FORREST: Your Honor, that's -- they're not 16
completely lost. We just had a mediation where I went 17
through all this. 18
MS. WAHL: May I, Your Honor? On -- 19
THE COURT: You guys can't all be talking about 20
the same thing, because you're giving me very different 21
interpretations of it. And that -- that's problematic. 22
MS. WAHL: I'm not sure what is being requested 23
procedurally. If I'm understanding Ms. Forrest, she wants 24
to submit thousands of documents, some of -- 25
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THE COURT: No. You cite the relevant portions 1
of those documents in your opposition. 2
MS. FORREST: That -- 3
THE COURT: I'm not going to sit there and read 4
through five boxes of materials to make a decision where 5
the law allows for limited discovery, number one. And 6
number two, that essentially goes to the merits of this 7
whole thing. 8
MS. FORREST: I have to defeat the motion on the 9
merits. That's part of the problem with the statute. 10
THE COURT: And I'm telling you, I understand 11
that. But you're going to be selective. You're not going 12
to give me stuff to read that I have no business spending 13
hour after hours, myself or my staff, pouring over. So 14
you be selective about, and strategic about how you 15
approach your opposition. Then that begs the question, 16
since we need to get this stuff on the record, obviously 17
putting something on -- posting something on line, I don't 18
know if that would be considered -- 19
MS. FORREST: It's not -- let me be clear, Your 20
Honor. These are his binders, which we only have access 21
to because the APA posted them online. These are his 22
binders that support his conclusion, which has over 6,000 23
pages in it. 24
THE COURT: Okay. Okay. Then you select -- 25
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MS. FORREST: These are evidence. 1
THE COURT: -- you select, of those 6,000 pages 2
-- because you know what? I ain't going to read them. 3
MS. FORREST: I appreciate that, Your Honor. 4
THE COURT: And the burden is on you to be 5
selective. To include those portions that support your 6
opposition. I'm not going to humor people and read stuff 7
that I don’t have to read, simply because it's part of the 8
broader litigation. 9
MS. FORREST: Appreciate that. May I ask the 10
favor? 11
THE COURT: It depends on what the favor is. 12
MS. FORREST: May I, then, attach, so I have it 13
on the record, we have been -- and say, we have been 14
selected at the request of the Court -- selective at the 15
request of the Court, but we believe all these other 16
documents -- and just list them as an attachment -- Your 17
Honor doesn't necessarily, if Your Honor doesn't want to 18
list them, we want to make sure it's on the record. 19
THE COURT: No. 20
MS. FORREST: Because I don't know if I've got a 21
clear and convincing standard, Your Honor, or if I'm 22
briefing on the negligence? 23
THE COURT: Well, assume the worst. 24
MS. FORREST: Which I'm going to. Which is why 25
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I believe that I have a duty to my clients to submit in 1
evidence at a clear and convincing standard. 2
THE COURT: You're not going to file 6,000 pages 3
of documents. 4
MS. FORREST: I don't want to, Your Honor. 5
That's not what I'm asking. 6
THE COURT: Then don't. 7
MS. FORREST: That's not what I'm asking. 8
THE COURT: Then don't. You're asking that it 9
be attached. 10
MS. FORREST: I'm saying, can I list those in 11
the document? You're limiting what I can submit in 12
opposition to the motion. And I'm saying, I need to make 13
a record. 14
THE COURT: No, you're misunderstanding me. I'm 15
telling you to be selective and focus on the stuff that 16
best support your position. Just because it's on a 17
document that they gave you doesn’t meant that it should 18
be attached or be part of your opposition. 19
MS. FORREST: I have not yet asked for a single 20
excess page in any of this proceeding, Your Honor. I've 21
worked very hard to be brief. And I will continue to do 22
that. 23
THE COURT: That's not what I'm talking about. 24
MS. FORREST: And I will continue to do it. 25
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35
THE COURT: You're being non-responsive to the 1
point that I made. 2
MS. FORREST: I will continue to be selective in 3
what I cite, but we believe we have a right, under the 4
statute to present everything. You're telling me to limit 5
it. I will follow what you're saying and limit what I 6
submit to the Court. But I need to have a record that 7
shows I have all this evidence -- 8
THE COURT: I doubt that all those 6,000 pages 9
don't overlap with each other. It could be repetitive. 10
It could be cumulative. It could be irrelevant. I don't 11
want to see it. I don’t need to hear about it. 12
MS. FORREST: And cumulative is exactly the 13
standard Tolorris v. Pirro (phonetic sp.) and the D.C. 14
Circuit has used. They said we're right -- 15
THE COURT: I'm telling you what we're going to 16
do. 17
MS. FORREST: -- we have the right -- I'm sorry? 18
THE COURT: I'm telling you what we're going to 19
do. 20
MS. FORREST: Okay. Okay, Your Honor. I 21
appreciate that. 22
THE COURT: So, when do you want to file your 23
opposition to the motion? 24
MS. FORREST: Some of this doesn't -- deadline 25
jdp
36
for plaintiffs to file -- when does Your Honor want to 1
deal with discovery issues, protective order issues, and 2
the work product privileges dealt with -- claimed by 3
Sidley? 4
THE COURT: Ms. Wahl, Mr. Hentoff? 5
MR. HENTOFF: Your Honor, plaintiff wants to 6
bring a motion to compel. As plaintiff suggested in the 7
praecipe, they should contact me, we should meet and 8
confer. And if they need to bring a motion, they can 9
bring a motion. I don't think that relates to the 10
schedule right now. 11
MS. FORREST: We've got evidence in some of 12
those statements, and I can give Your Honor two or three 13
examples right now, and we can argue it right now if we'd 14
like. 15
THE COURT: No, we're not going to do that. 16
MS. FORREST: Okay. 17
THE COURT: What's your response to Mr. 18
Hentoff's suggestion? 19
MS. FORREST: I don't want to bring a separate 20
motion to compel because we're going to be trying to do 21
discovery. We'll try to work it out with him. What I'd 22
like to do is come back and have a hearing in a month to 23
deal with protective order issues. Also, work product 24
issues. We anticipate that Dr. Solts will argue about 25
jdp
37
scope up in the deposition in Massachusetts. And so, I'd 1
like to work those out in one hearing and then file our 2
opposition after that. 3
THE COURT: Mr. Hentoff, Ms. Wahl? 4
MR. HENTOFF: Your Honor, I'd like to wait and 5
see if there's ever -- if there actually is ever a need to 6
involve the Court. I don't think we should schedule 7
something right now. 8
THE COURT: But if she does say that you have 9
made some of those arguments already. 10
MS. WAHL: Well, there was an order issued by 11
this Court with regard to Dr. Solts. So, I'm not sure 12
what else there is to talk about with him. With regard to 13
the documents, I think a dialogue between counsel is 14
completely appropriate. That's the way it always works. 15
Try to figure it out, and if we can't figure it out, we 16
file a motion. 17
THE COURT: Ms. Forrest? 18
MS. FORREST: I think we need to deal with work 19
product. You also are going to have to make some 20
decisions about what I can file in papers and what I 21
can't. So they've listed a number of documents as 22
confidential and highly confidential, which are all very 23
public. And which Mr. Hoffman had. We don’t think those 24
should need to be filed under seal, because that's a whole 25
jdp
38
nother separate process and more documents for the Court. 1
Okay? I think, given the history between the parties 2
here, and the fact that, you know, we -- the objections 3
have already been raised, we're going to do our best to 4
work them out and not involve you. But that's not been 5
the history here. So if we have to -- so, for example, 6
Dr. Solts' counsel has already objected on scope. I 7
anticipate sitting in the deposition and them refusing to 8
answer questions. At which point, I'm going to have to 9
come back in, unless Your Honor wants me to call him from 10
the deposition. So, I think the schedule needs to 11
anticipate what the past behavior has been. 12
THE COURT: Counsel? 13
MS. WAHL: Well, again, I don't mean to repeat 14
myself, but you've already issued a protective order with 15
regard to Dr. Solts. 16
THE COURT: I don't understand. You're saying 17
that his lawyer's going to refuse to abide by the 18
protective order? 19
MS. FORREST: It's not the protective order 20
that's the issue. It's the scope of the deposition, Your 21
Honor. 22
THE COURT: Well, the protective order sort of 23
sets the parameter of what can be discussed. 24
MS. FORREST: I think we're going to argue over 25
jdp
39
what's related to the defeat of the ANTI-SLAPP motion 1
because we don’t even agree on the standard of actual 2
malice. 3
THE COURT: No, no, no. That's a whole 4
different issue. We're talking about the scope of Dr. 5
Solts' deposition and the protective order already sets 6
those parameters. 7
MS. FORREST: The protective order, I believe, 8
that the order for the deposition was that anything to 9
defeat the SLAPP motion is game. 10
THE COURT: Okay. Then I will make myself 11
available by phone. 12
MS. FORREST: Thank you. I appreciate that. 13
Would you like us to just call chambers if there's an 14
issue? 15
THE COURT: Yes. But you need to give me the 16
dates once they're set. 17
MS. FORREST: As soon as I have a date, I'll 18
call chambers and let you know, Your Honor. 19
THE COURT: Okay. 20
MS. FORREST: So, then what we will try to do 21
is, I will try to make a list of work product. After that 22
deposition, I'll make any other issues that we -- I'll 23
list any other issues that we have on the scope. 24
Hopefully with Your Honor available, we won't have any. 25
jdp
40
And then I'll also talk about protecting -- the way I read 1
the protective order now, you have to make a decision on 2
whether something's covered or not. And so, I'll do all 3
those in one motion if we need it. If we set a date now, 4
I know I -- we have the time and I have to do that by that 5
date. And then we can come in and, and I think October -- 6
based on that schedule, October 31st would work if we set 7
a scheduled date with you in October. 8
THE COURT: Mr. Hentoff, Ms. Wahl? 9
MR. HENTOFF: Your Honor, I don't have an 10
objection to having the date open if there's a need to 11
resolve discovery disputes. 12
THE COURT: Can we do October 30th? 13
MS. FORREST: That’s fine with me, Your Honor. 14
MR. HENTOFF: Your Honor, October 3-0? 15
THE COURT: Yes, sir. Ms. Wahl? 16
MS. WAHL: That's fine, Your Honor. 17
MS. FORREST: Based on that, Your Honor, I would 18
then ask for two weeks to file the opposition. 19
THE COURT: Instead of the -- okay. Let's see. 20
So you would file your opposition within two weeks. 21
MS. FORREST: Of that hearing. Yes, Your Honor. 22
THE COURT: Oh, okay. Not two weeks from today. 23
MS. FORREST: Yeah. No, that hearing -- because 24
you're going to make a decision about what I can and 25
jdp
41
cannot put in that opposition at that hearing. If there's 1
anything. If we can put it off -- 2
THE COURT: If there's anything. What if there 3
isn't anything? 4
MS. FORREST: If there isn't, then we'll put it 5
off and we can do it differently. But I would just say -- 6
I'm just asking for a two weeks difference in schedule. 7
That we put the scheduling on November 15th. So if we 8
need a hearing, we have built-in time. 9
THE COURT: So you're asking until November 15th 10
to file your opposition, which would be essentially 15 11
days beyond October 31st. 12
MS. FORREST: What they've proposed. Yeah. 13
THE COURT: Ms. Wahl, Mr. Hentoff? 14
MS. WAHL: We don’t have any objection to that. 15
The question is whether, as I had proposed, everything is 16
then tied to that date. Meaning we had proposed that 17
that's also the day when the defendants would file their 18
opposition to the constitutionality. 19
THE COURT: Yes. 20
MS. WAHL: Okay. Yeah, we don't have any 21
problem with that. 22
MR. HENTOFF: Then Your Honor, we'd like more 23
time to file our replies because the Thanksgiving holiday 24
is then. 25
jdp
42
THE COURT: Right. The reply is now due on the 1
22nd. That reply would have to be -- would December the 2
6th work? 3
MR. HENTOFF: Your Honor, I'd like another week 4
because of the Thanksgiving holiday falling in between. 5
MS. FORREST: And we would get another week on 6
our reply as well. That's fine. 7
THE COURT: Okay. 8
MS. FORREST: what I would ask is after this 9
hearing, if everybody -- sorry, Mr. Hentoff, if you could 10
distribute just a revised schedule for us all to agree to? 11
And then we submit it to the Court so those are put on the 12
docket, that would be helpful to me. 13
MR. HENTOFF: Your Honor, we have no objection 14
to that. 15
MS. FORREST: And before that gets submitted to 16
the Court, it comes to us to make certain we're all in 17
agreement based on what he said here today. 18
THE COURT: Okay. 19
MS. FORREST: Thank you. 20
THE COURT: All right. So we are setting a 21
hearing date on October 30th? Or was October 30th for you 22
to submit -- 23
MS. FORREST: That's on the protective order 24
issues and the other thing. 25
jdp
43
THE COURT: The protective order. 1
MS. FORREST: So the hearing date, I assume, is 2
going to be had -- that you're going to need time to read 3
the papers. So if I'm, I'm submitting my -- if we're 4
submitting all our oppositions and replies 1st of 5
December, I would expect the hearing date be in December, 6
Your Honor. Unless we're losing you in December to 7
another court. 8
THE COURT: I thought it was November 15th, 9
December 13th, December 20th? 10
MS. FORREST: Mr. Hentoff just asked for extra 11
time because of Thanksgiving. 12
THE COURT: Right. 13
MR. HENTOFF: Your Honor, there was some -- 14
THE COURT: So, that would be -- that would take 15
us through the -- to the 13th. 16
MR. HENTOFF: I believe -- 17
MS. FORREST: Of December. 18
THE COURT: Yes, ma'am. 19
MS. FORREST: Right. So I'm saying a hearing 20
date on the motion in December. 21
THE COURT: Which of the motions? 22
MS. FORREST: Sorry. Two hearing dates. 23
THE COURT: Okay. 24
MS. FORREST: One is for the protective order 25
jdp
44
issues and any discovery issues, assuming we can't work it 1
out. Which we all hope we do. 2
THE COURT: Is that October 30th? 3
MS. FORREST: Correct. Yes. 4
THE COURT: We're setting October 30th for that 5
purpose. Okay. 6
MS. FORREST: That's what I understood, Your 7
Honor. 8
THE COURT: Okay. What time would you like to 9
set it, 9:30? 10
MS. FORREST: Whatever's convenient for the 11
Court. Thank you. 12
MR. HENTOFF: That's fine with me, Your Honor. 13
MS. WAHL: I would just note for the Court -- 14
MS. FORREST: It's set beyond the -- 15
MS. WAHL: No, we have a status conference in 16
Boston the day before at two o'clock. 17
MS. FORREST: Irrelevant. 18
MS. WAHL: So assuming that we don’t have any 19
problems getting back -- 20
MR. HENTOFF: Could we do the afternoon? 21
THE COURT: The afternoon? The afternoon? 22
MS. WAHL: It'd be better for us to do it in the 23
afternoon in case there are flight problems. 24
THE COURT: That's fine. 25
jdp
45
(Pause.) 1
THE COURT: The afternoon probably makes sense. 2
And then I can wrap up the trial by that Monday -- that 3
Wednesday morning if necessary. So -- 4
(Pause.) 5
THE COURT: How about November the 1st? I'm not 6
sitting for trial on Fridays. 7
MS. WAHL: That's fine for me, Your Honor. 8
MR. HENTOFF: Same here, Your Honor. 9
THE COURT: Ms. Forrest? 10
MS. FORREST: I'm looking, Your Honor, thanks. 11
(Pause.) 12
THE COURT: Do you have your own personal 13
private plane? 14
MS. FORREST: I wish, Your Honor. Not so much. 15
That's fine. 16
THE COURT: That's fine? Okay. November 1st. 17
MS. FORREST: Keeping in mind what you've said 18
today, I've heard you, Your Honor, loud and clear. When I 19
come in for the discovery issue, I will make my request 20
then, based on the number of pages I'll need, since I'll 21
be responding to three major issues in that motion. 22
Because I'll obviously need more than 15 pages. 23
THE COURT: Yes. 24
MS. FORREST: Would Your Honor like a 25
jdp
46
consolidated reply to the APA to some of these motions? 1
Or does -- do you want separate? 2
THE COURT: Consolidated reply. 3
MS. FORREST: Consolidate everything I can? 4
Okay. 5
THE COURT: Yes. 6
MS. FORREST: Then I'll come back in and -- 7
would you like me to do a praecipe in advance of the 8
hearing to tell you, sort of, the pages I need and why 9
that? Is that helpful or would you rather do it in here? 10
THE COURT: Are you talking in advance of the 11
November 1st hearing? 12
MS. FORREST: Correct. Or no -- yes, correct. 13
THE COURT: Well, we'll discuss any pertinent 14
issues to the protective order. 15
MS. FORREST: The protective order and any 16
discovery issues, but I'll also anticipate at that point, 17
I'll know what from the depositions are. So I'll know a 18
little bit more what my replies are going to look like. 19
And our opposition. So I'm going to need to know then how 20
many pages I'm going to need from you, extra, beyond 15. 21
THE COURT: Okay. 22
MS. FORREST: And what you told me is, Ms. 23
Forrest, I want you to consolidate all your replies. So I 24
know already, one's going to go from 15 to 30. So the 25
jdp
47
question is, is whether I ask you for certain pages and 1
give you justification to that in advance of the November 2
1st hearing or whether we just come and talk about it? 3
THE COURT: Okay. Mr. Hentoff, Ms. Wahl? 4
MR. HENTOFF: Your Honor, I'd be fine with just 5
talking about pages at the November 1st hearing. And we 6
could also then talk about pages for the reply briefs. 7
THE COURT: We can discuss it at that point, Ms. 8
Forrest. I mean, just to be clear, my concern is not so 9
much the page limit of your reply, but the attachments. 10
Because if it's really important, it should be part of 11
your reply. 12
MS. FORREST: I -- Your Honor, I really am 13
trying to listen to you and I'm not trying to question 14
you. Here's my -- the practicalities of the statute are 15
problematic. 16
THE COURT: I understand that. 17
MS. FORREST: And so, what it says is, I have to 18
show up with evidence. 19
THE COURT: I understand that. But you have to 20
show up with evidence, not all the evidence you want. 21
They're two different things. 22
MS. FORREST: And I've heard that. And so, I'm 23
going to go back and look at that. The problem is, is 24
that the clear and convincing standard is a bit amorphous. 25
jdp
48
So what overcomes clear and convincing? Now, what you've 1
told me is that you're very aware the standard isn't the 2
merits issue. That the standards is, if there's a 3
credibility issue, you resolve it in our favor. That's 4
the summary judgment standard. So that's going to inform 5
what I put in the motion. Based on what you've told me 6
today. 7
THE COURT: Okay. All right. We'll discuss it 8
on the 1st then. 9
MS. FORREST: Thank you. Anything else, Ms. 10
Forrest? 11
MS. FORREST: Thank you, Your Honor. 12
THE COURT: Mr. Hentoff? 13
MR. HENTOFF: Nothing from me, Your Honor. 14
THE COURT: Mr. Wahl? 15
MS. WAHL: Nothing, Your Honor. Thank you. 16
THE COURT: I'm sorry, Ms. Wahl. Anything on 17
behalf of the District government? 18
MR. SANDON: No, Your Honor. November 15th is 19
our deadline to file our opposition? 20
THE COURT: Are you still asking -- are you -- 21
have you started to ask yourself what you're doing here? 22
MR. SANDON: No, Your Honor. I thought malice 23
analysis would be a good name for a band. But I'm just 24
happy to focus on our brief November 15th. 25
jdp
49
THE COURT: Okay, very well. Anything else from 1
anyone? Okay, November 1st. Can we make it -- I don't 2
know, two o'clock? 3
MS. WAHL: That's fine. 4
THE COURT: I'll have a morning calendar and see 5
-- and I'm pretty much covered through at least noon. 6
MS. FORREST: Your Honor, do you know if we're 7
going to have you beyond December yet? 8
THE COURT: I'm sorry? 9
MS. FORREST: Do you now if we're going to have 10
you beyond December yet? 11
THE COURT: I don't know yet. My suspicion, 12
given -- my suspicion, given the timelines here, is that 13
even if I were to rotate out of the civil division, this 14
matter would come with me for the resolution. 15
MS. FORREST: Thank you, Your Honor. 16
THE COURT: Okay? All right. Thank you. 17
MS. KITTON: Thank you. 18
MR. HENTOFF: Thank you, Your Honor. 19
MR. KASNER: Thank you, Your Honor. 20
(Thereupon, the hearing was concluded.) 21
22
23
24
25
50
√ Digitally signed by Jennifer D. Pylant
ELECTRONIC CERTIFICATE
I, Jennifer D. Pylant, transcriber, do hereby
certify that I have transcribed the proceedings had and
the testimony adduced in the case of STEPHEN BEHNKE, ET
AL. V. SIDLEY AUSTIN, ET AL., Case No. 2017 CAB 005989 in
said Court, on the 6th day of September 2019.
I further certify that the foregoing 49 pages
constitute the official transcript of said proceedings as
transcribed from audio recording to the best of my
ability.
In witness whereof, I have hereto subscribed my
name, this 9th day of September, 2019.
Transcriber
1
SUPERIOR COURT FOR THE DISTRICT OF COLUMBIACivil Division
STEPHEN BEHNKE, et al., ))
v. ) 2017 CA 005989 B) Judge Hiram E. Puig-Lugo) Next Event: Status Hearing: 11/1/19
DAVID D. HOFFMAN, et al., )
ORDER
Upon consideration of Defendants’ Opposed Motion for Entry of Order, filed September
13, 2019, and Plaintiffs’ Opposition, filed September 16, 2019, it is this 17th day of September,
2019, hereby:
ORDERED that Defendants’ Opposed Motion for Entry of Order is GRANTED IN
PART; and it is further
ORDERED that Plaintiffs will file their consolidated opposition to (1) Defendant
American Psychological Association’s Contested Special Motion to Dismiss Under the D.C.
Anti-SLAPP Act D.C. Code 16-5502, filed October 13, 2017; (2) Defendants Sidley Austin LLP,
Sidley Austin (DC) LLP, and David Hoffman’s Contested Special Motion to Dismiss Under the
District of Columbia Anti-SLAPP Act, D.C. Code 16-5502, filed October 13, 2017; (3)
Defendant American Psychological Association’s Contested Special Motion to Dismiss Count 11
of the Supplemental Complaint Under the D.C. Anti-SLAPP Act, D.C. Code § 16-5502, filed
March 21, 2019; and (4) Defendants Sidley Austin LLP, Sidley Austin (DC) LLP, and David H.
Hoffman’s Contested Special Motion to Dismiss Count 11 of the First Supplemental Complaint
Under the District of Columbia Anti-SLAPP Act D.C. Code § 16-5502, filed March 21, 2019,
by November 15, 2019; and it is further
ORDERED that Defendants shall file their consolidated opposition to Plaintiffs’
FiledD.C. Superior Court09/17/2019 15:12PMClerk of the Court
2
Opposed Motion to Declare the D.C. Anti-SLAPP Act Void and Unconstitutional, filed January
8, 2019, by November 15, 2019; and it is further
ORDERED that Intervenor District of Columbia shall file its opposition to Plaintiffs’
Opposed Motion to Declare the D.C. Anti-SLAPP Act Void and Unconstitutional, filed January
8, 2019, by November 15, 2019; and it is further
ORDERED that Defendants shall file consolidated replies in support of their respective
anti-SLAPP Motions by December 13, 2019; and it is further
ORDERED that Plaintiffs shall file their reply in support of their Void and
Unconstitutional Anti-SLAPP Act Motion by December 13, 2019; and it is further
ORDERED that the docket entry noting “Responses to the replies are due by 12/20/19”
is stricken; and it is further
ORDERED that no party is permitted to file a sur-reply as anything deemed important
enough to necessitate the filing of a sur-reply should be included in the parties’ oppositions.
SO ORDERED.
Honorable Hiram E. Puig-LugoAssociate Judge Signed in Chambers
Copies to:All Counsel of Record
SUPERIOR COURT FOR THE DISTRICT OF COLUMBIACivil Division
STEPHEN BEHNKE, et al., ))
Plaintiffs, ))
v. ) 2017 CA 005989 B ) Judge Hiram E. Puig-Lugo
)DAVID D. HOFFMAN, et al., )
) Defendants. )
ORDER
On September 6, 2019, the parties appeared before this Court for a status hearing. At that time, the parties
disagreed on the scope of a deposition to be scheduled for Dr. Soldz. Attorney Wahl, counsel for Defendant
American Psychological Association, took the position that a protective order applicable to Dr. Soldz resolved the
issue. In contrast, Plaintiffs’ Attorney Forrest anticipated that the history of disagreements between the parties could
present an issue as to the appropriate scope of the inquiry. At Attorney Forrest’s request, the Court agreed to be
available by phone when the parties deposed Dr. Soldz to resolve potential disputes.
On September 24, 2019, Ms. Forrest called judicial staff and noted that separate deposition dates had been
set for a total of three witnesses.1 Shortly thereafter, Ms. Wahl called judicial staff and represented that the Court
had agreed to be available only for one deposition. Subsequently, Ms. Forrest called chambers again and requested
a hearing on this matter.
After reviewing the September 6, 2019 transcript, it is clear that this Court agreed to be available by
telephone only for a deposition of Dr. Soldz to occur sometime during the month of September. This Court was not
asked and did not agree to be available when the parties deposed Dr. Kelly and Dr. Honaker. Similarly, this Court
was not asked and did not agree to be available for any deposition during the month of October.
Upon further reflection, the Court finds that it is in everyone’s best interest for the parties to follow the
protective order issued in this case and to resolve any disputes between themselves. It is inappropriate for this Court
to give the litigants in this case special treatment and to set a precedent that will allow other litigants to request
telephone access in resolving disputes related to depositions.
1 Ms. Forrest relayed that on October 11, 2019, Dr. Soldz would be deposed in Massachusetts at 10:00 a.m., on October 17, 2019, Dr. Kelly would be deposed at 10:00 a.m. in the District of Columbia, and on October 30, 2019, Dr. Honaker would be deposed at 11:00 a.m. in the District of Columbia.
FiledD.C. Superior Court09/24/2019 16:11PMClerk of the Court
The attorneys for all parties are directed to comport themselves as mature professionals and not rely on
calling chambers to present their competing positions to judicial staff. The rules of ethics would deem such
conversations as inappropriate ex parte communications in contravention of relevant ethical guidelines. If the
parties need clarification on an issue related to the scope of a deposition, they must consult the pertinent protective
order and respect the parameters described in that document. The protective order speaks for itself and will not be
turned into an avenue for the parties to engage in unproductive, wasteful and endless bickering. Failure to comply
with this Order or with the pertinent discovery rules may result in evidentiary and/or financial sanctions.
IT IS SO ORDERED.
Judge Hiram Puig-Lugo Signed in Chambers
Copies via CasefileXpress to all counsel of record.
1
SUPERIOR COURT FOR THE DISTRICT OF COLUMBIACivil Division
STEPHEN BEHNKE, et al., ))
Plaintiffs, ))
v. ) 2017 CA 005989 B ) Judge Hiram E. Puig-Lugo
)DAVID D. HOFFMAN, et al., )
) Defendants. )
ORDER
The Plaintiffs have moved this Court to declare void and unconstitutional the D.C. Anti-
SLAPP Act of 2010. Specifically, they contend that the Anti-SLAPP Act (1) violates the Home
Rule Act, (2) contravenes the First Amendment because it is “grossly overbroad,” and (3) creates
impermissible barriers to finding recourse in the Courts. For the reasons discussed below this
motion is denied.
Background
On August 28, 2017, the Plaintiffs filed claims of defamation per se, defamation by
implication and false light against the Defendants.1 At that time, the Plaintiffs included former
Army Colonels L. Morgan Banks, III, Debra L. Dunivin, Larry C. James, and Drs. Russell
Newman and Stephen Behnke.2 The Defendants are attorney David Hoffman, his law firm
Sidley Austin LLP, its District office Sidley Austin (DC) LLP, and the American Psychological
Association (“APA”) (collectively, the “Defendants”).
The dispute between the parties is based on the contents of an independent review and
report that APA commissioned from Hoffman and Sidley Austin. The review and report resulted
1 On February 4, 2019, Plaintiffs filed a supplemental complaint adding an additional count of defamation per se.2 Dr. Newman and Dr. Behnke have been ordered to arbitrate their claims as provided in their contractual relationships with the American Psychological Association.
FiledD.C. Superior Court01/23/2020 09:56AMClerk of the Court
2
from an investigation into concerns that, in the aftermath of September 11, 2001, the APA
colluded with the Bush Administration, the Central Intelligence Agency (“CIA”) and the U.S.
military to support participation of mental health professionals in the torture of military
detainees. The Plaintiffs contend that the investigation did not find evidence to support the
allegations described in the Defendants’ report and resulted in the publication of a series of
demonstrably false and defamatory allegations against them.
In response to the Plaintiffs’ Complaint, the Defendants filed separate special motions to
dismiss under the D.C. Anti-SLAPP Act, D.C. Code § 16-5502 (“Anti-SLAPP Act”), which are
currently pending before the Court. For their part, the Plaintiffs opposed the separate requests
for dismissal and countered with a motion to declare the D.C. Anti-SLAPP Act void and
unconstitutional.
The Court notes that this lawsuit is the second of three substantively similar lawsuits
against the Defendants filed in Ohio, the District of Columbia, and Massachusetts, arising from
the aforementioned publication of Sidley Austin’s independent investigative report to the APA.
The Ohio case was dismissed for lack of personal jurisdiction and the Massachusetts case is
currently stayed in favor of the D.C. action under the first-filed rule.
DISCUSSION
The D.C. Anti-SLAPP Act of 2010 culminated a legislative process which began with a
proposed bill introduced in June that year. After a public hearing, a mark-up hearing and a
detailed report from the Council’s Committee on Public Safety and the Judiciary, the Council
unanimously approved the bill. See Council of the District of Columbia Committee on Public
Safety and the Judiciary Committee Report, Report on Bill 18-893, “Anti-SLAPP Act of 2010,”
3
November 18, 2010 (Comm. Rep.)3. After the period of congressional review required under the
Home Rule Act (“HRA”), the legislation became effective on March 31, 2011. 58 D.C. Reg.
3699 (Apr. 29, 2011).
The Anti-SLAPP Act, D.C. Law 18-351, codified at D.C. Code §§ 16-5501, et seq.,
“incorporates substantive rights with regard to a defendant’s ability to fend off lawsuits filed by
one side of a political or public policy debate aimed to punish or prevent the expression of
opposing points of view.” Comm. Rep. at 1. More specifically, the Council described the
“background and need” for the legislation as follows:
Bill 18-893, the Anti-SLAPP Act of 2010, incorporates substantive rights with regard to a defendant’s ability to fend off lawsuits filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view. Such lawsuits, often referred to as strategic lawsuits against public participation – or SLAPPs –have been increasingly utilized over the past two decades as a means to muzzle speech or efforts to petition the government on issues of public interest. Such cases are often without merit, but achieve their filer’s intention of punishing or preventing opposing points of view, resulting in a chilling effect on the exercise of constitutionally protected rights. Further, defendants of a SLAPP must dedicate a substantially (sic) amount of money, time, and legal resources. The impact is not limited to named defendants willingness to speak out, but prevents others from voicing concerns as well. To remedy this Bill 18-893 follows the model set forth in a number of other jurisdictions, and mirrors language found in federal law, by incorporating substantive rights that allow a defendant to more expeditiously, and more equitably, dispense of a SLAPP.
Id.
The law provides that “[a] party may file a special motion to dismiss any claim arising
from an act in furtherance of the right of advocacy on issues of public interest within 45 days
after service of the claim.” D.C. Code § 16-5502(a). “If a party filing a special motion to
dismiss under this section makes a prima facie showing that the claim at issue arises from an act
in furtherance of the right of advocacy on issues of public interest, then the motion shall be
granted unless the responding party demonstrates that the claim is likely to succeed on the
3 The Committee Report is available online at http://lims.dccouncil.us/Download/23048/B18-0893-CommitteeReport1.pdf (Jan. 10, 2020).
4
merits, in which case the motion shall be denied.” D.C. Code § 16-5502(b). “When it appears
likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery
will not be unduly burdensome, the court may order that specified discovery be conducted. Such
an order may be conditioned upon the plaintiff paying any expenses incurred by the defendant in
responding to such discovery.” D.C. Code § 16-5502(c)(2). If it does not appear likely that
targeted discovery will enable the plaintiff to defeat the motion and/or that discovery will be
unduly burdensome, discovery proceedings on the claim shall be stayed until the motion is
resolved. D.C. Code § 16-5502(c)(1). Moreover, the Act mandates that the “Court hold an
expedited hearing on the special motion to dismiss, and issue a ruling as soon as practicable after
the hearing.” D.C. Code § 16-5502(d). “If the special motion to dismiss is granted, dismissal
shall be with prejudice.” Id.
The goal of the Anti-SLAPP provisions cited above is to ensure that “District residents
are not intimidated or prevented, because of abusive lawsuits, from engaging in political or
public policy debates.” Comm. Rep. at 4. Similarly, the Act seeks to prevent “the attempted
muzzling of opposing points of view, and to encourage the type of civic engagement that would
be further protected by [the] act.” Id.
It is notable that the Committee Report prepared for the Anti-SLAPP Act emphasizes that
the law was designed to follow the model set forth in a number of other jurisdictions, Committee
Report at 1, and that the D.C. Court of Appeals often accords significant weight to such reports.
Boley v. Atl. Monthly Group, 950 F. Supp. 2d 249, 255 (D.D.C. 2013) (citations and internal
quotations omitted). “Where appropriate, then, the Court will look to decisions from other
jurisdictions (particularly those from California, which has a well-developed body of anti-
5
SLAPP jurisprudence) for guidance in predicting how the D.C. Court of Appeals would interpret
its own anti-SLAPP law.” Id.
I. The Anti-SLAPP Act and the Home Rule Act.
The Plaintiffs argue that the Anti-SLAPP Act exceeds the authority granted to the D.C.
Council under the Home Rule Act and creates new procedures applicable to D.C. Courts without
having followed appropriate procedures. Both issues are discussed sequentially below.
Article I, section 8, clause 17 of the Constitution empowers Congress to exercise
exclusive Legislation over the District of Columbia. Bliley v. Kelly, 23 F.3d 507, 508 (D.C. Cir.
1994). In 1973, Congress delegated the bulk of this authority to the District through enactment
of the Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) (codified as amended at D.C.
Code §§ 1-201 et seq.). The Home Rule Act reserves for Congress a layover period of thirty
statutory days to review legislation enacted in the D.C. Council, and the legislation will become
law if Congress does not pass a joint resolution disapproving the legislation within that time
frame. Bliley, 23 F.3d at 508.
When it enacted the Home Rule Act, Congress intended, in relevant part, “to delegate
certain legislative powers to the government of the District of Columbia; … grant to the
inhabitants of the District of Columbia powers of local self-government; modernize, reorganize,
and otherwise improve the governmental structure of the District of Columbia; and, to the
greatest extent possible, consistent with the constitutional mandate, relieve Congress of the
burden of legislating upon essentially local District matters.” D.C. Code § 1-201.02(a). In
addition, Congress directed that “the legislative power of the District shall extend to all rightful
subjects of legislation within the District consistent with the Constitution of the United States
and the provisions of this chapter subject to all the restrictions and limitations imposed upon the
6
states by the 10th section of the 1st article of the Constitution of the United States.” D.C. Code §
1-203.02. However, that delegation of legislative authority is not without limitation.
The Home Rule Act specifies that the D.C. Council shall have no authority to enact any
act, resolution, or rule related to the organization and jurisdiction of the District of Columbia
courts as required under Title 11. D.C. Code § 1-206.02(a)(4). The legislative history of the
HRA indicates that “the purpose of this [provision] was the very strong argument made by the
court and supported by members of the bar . . . that the Reorganization Act had just gone into
effect. Therefore, the structure of the courts should have an opportunity for that Reorganization
Act to be completely carried out.” Staff of House Committee on the District of Columbia, 93d
Cong., 2d Sess., Home Rule for the District of Columbia, 1973-1974, 1081 (Comm. Print 1974)
(emphasis added).
The D.C. Court of Appeals has construed D.C. Code § 1-206.02(a)(4) narrowly to mean
that “the Council is precluded from amending Title 11 itself” but that the Council retains “broad
legislative power” to implement the purpose of the Home Rule Act. Price v. D.C. Bd. of Ethics
& Gov't Accountability, 212 A.3d 841, 845 (D.C. 2019). Where a litigant challenges the validity
of legislation under this provision, that party must demonstrate an actual conflict between the
law and the terms of Title 11 governing the courts’ jurisdiction and organization. See Hessey v.
Burden, 584 A.2d 1, 7 (D.C. 1990) (the “test is whether local legislation attempts to confer
jurisdiction that would conflict with the terms of title 11”). Otherwise, the limitation found in
D.C. Code § 1-206.02(a)(4) does not restrict the authority of the D.C. Council to enact or to alter
the substantive law applied in D.C. courts.
Moreover, the D.C. Court of Appeals has held that “the D.C. Council's interpretation of
its responsibilities under the Home Rule Act is entitled to great deference.” Tenley & Cleveland
7
Park Emergency Committee v. District of Columbia Bd. of Zoning Adjustment, 550 A.2d 331,
334 (D.C. 1988). Thus, statutes should be construed to avoid any doubt as to their validity
“when it is not compelled by the language or the purpose of the statute.” Umana v. Swidler &
Berlin, Chtd., 669 A.2d 717, 723-24 (D.C. 1995). The language or the purpose of the Anti-
SLAPP provision does not compel a finding a violation of the Home Rule Act here.
The Anti-SLAPP Act does not alter the jurisdiction of the courts, or otherwise interfere
with the court’s structure or core functions contrary to the Home Rule Act. The legislative
history of the Act explains that it was intended to create new “substantive rights.” The D.C.
Court of Appeals approved this position when it concluded that the Act created substantive
rights designed to protect the targets of meritless lawsuits intended to restrict participation in
issues of public concern. Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1226 (D.C. 2016)
(citations and internal quotations omitted) (emphasis added). Although the Plaintiffs focus on a
letter from a former Attorney General for the District of Columbia opining that the legislation
which became the Anti-SLAPP Act “may run afoul of section 602(a)(4)” of the Home Rule Act,
that opinion preceded enactment of the final version of the statute, was based on a preliminary
review of the initial bill and thus carries limited precedential weight in this conversation.
Subsequently, the legislation was amended, the Mayor signed it, and Congress did not pass a
joint resolution stating its disapproval prior to the legislation becoming law. Applying section
602(a)(4) of the Home Rule Act as Plaintiffs suggest, where the composition, structure and
jurisdiction of the courts are not at issue, would take that provision beyond what Congress
intended when it limited the legislative authority of the D.C. Council.4 Therefore, the D.C. Anti-
SLAPP Act does not contradict the terms of Title 11 in violation of the Home Rule Act.
4 The D.C. Courts have routinely and consistently concluded that the HRA does not prevent the Council from changing the District’s substantive law. Woodroof v. Cunningham, 147 A.3d 777, 784 (D.C. 2016).
8
Plaintiff also invokes D.C. Code § 11-946 to challenge the legality of the Anti-SLAPP
Act. This provision requires that “[t]he Superior Court shall conduct its business according to
the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure (except as
otherwise provided in Title 23) unless it prescribes or adopts rules which modify those Rules.
Rules which modify the Federal Rules shall be submitted for the approval of the District of
Columbia Court of Appeals, and they shall not take effect until approved by that court. The
Superior Court may adopt and enforce other rules as it may deem necessary without approval of
the District of Columbia Court of Appeals if such rules do not modify the Federal Rules.” Id. 5
However, aside from creating substantive rights in circumstances where the right of
advocacy on issues of public interest is involved, the Anti-SLAPP Act does not amend or modify
the Federal Rules of Civil Procedure. What it does is establish a framework to balance the
competing interests of adversarial parties in a particular set of circumstances which is “not a
redundant relative to the rules of civil procedure.” Competitive Enterprise Inst. v. Mann, 150
A.3d 1213, 1238 (D.C. 2016). Even if there were a conflict between the Act and Superior Court
rules, the Act would prevail since a rule “may not supercede an inconsistent provision of the
District of Columbia Code.” Ford v. ChartOne, Inc., 834 A.2d 875, 879 (D.C. 2003). Thus, the
Anti-SLAPP Act does not modify federal rules and does not create new procedures contrary to
the directive found in D.C. Code § 11-946.
II. The Constitutionality of the Anti-SLAPP Act:
Plaintiffs contend that the Anti-SLAPP Act limits the content of speech and therefore is
subject to strict scrutiny. However, the Supreme Court has not said “that strict scrutiny is called
5 See, General Rules of the Family Division, Rules Governing Parentage and Support Proceedings, Rules Governing Domestic Relations Proceedings, Rules Governing Proceedings in the Domestic Violence Division, and Rules Governing Abuse and Neglect Proceedings for examples of rules where D.C. Court of Appeals approval is not required.
9
for whenever a fundamental right is at stake.” Heller v. District of Columbia, 670 F.3d 1244,
1256 (D.C. Cir. 2011). In reality, the Anti-SLAPP Act does not on its face address or restrict the
ability of a plaintiff to file a lawsuit. Nat’l Ass’n for the Advancement of Multijurisdictional
Practice v. Roberts, 180 F. Supp. 3d 46, 53, (D.D.C. 2015). Thus, absent any precedential
authority to the contrary, strict scrutiny does not apply to the Anti-SLAPP Act.
a. The Anti-SLAPP Act is not Unconstitutionally Overbroad
A statute will be found overbroad on its face only if “a substantial number of applications
are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Sandvig v.
Sessions, 315 F. Supp. 3d 1, 28 (D.D.C. 2018) (quoting United States v. Stevens, 559 U.S. 460,
473 (2010)). In such circumstances, there must be a realistic danger that the statute itself will
significantly compromise First Amendment protections for parties not before the Court for the
statute to be facially challenged on over breadth grounds. Members of City Council v. Taxpayers
for Vincent, 466 U.S. 789, 801 (1984). “Broad, facial challenges to the constitutionality of a
statute impose a heavy burden on the parties and rarely succeed. This is so because "a plaintiff
can only succeed in a facial challenge by 'establish[ing] that no set of circumstances exists under
which the [a]ct would be valid,' i.e., that the law is unconstitutional in all of its applications.”
Plummer v. United States, 983 A.2d 323, 338 (D.C. 2009) (citations omitted).
Here, the Plaintiffs claim that the Anti-SLAPP Act “impinges unconstitutionally on the
rights of the plaintiffs to bring legitimate suits to redress wrongs to their reputations,” but fail to
identify any specific and potential applications of the Act that would render it unconstitutional.
Pl. Mem. at 6. Yet, the D.C. Court of Appeals has determined that the Anti-SLAPP satisfies
constitutional guidelines:
The immunity created by the Anti-SLAPP Act shields only those defendants who face unsupported claims that do not meet established legal standards. Thus, the special motion
10
to dismiss in the Anti-SLAPP Act must be interpreted as a tool calibrated to take due account of the constitutional interests of the defendant who can make a prima facie claim to First Amendment protection and of the constitutional interests of the plaintiff who proffers sufficient evidence that the First Amendment protections can be satisfied at trial; it is not a sledgehammer meant to get rid of any claim against a defendant able to make a prima facie case that the claim arises from activity covered by the Act.
Competitive Enter. Inst. v. Mann, 150 A.3d at 1213, 1239 (D.C. 2016).
Similarly, the California Supreme Court has found that a motion filed under that state’s
Anti-SLAPP law is not “a weapon to chill the exercise of protected petitioning activity by people
with legitimate grievances.” Equilon Enters. v. Consumer Cause, Inc., 52 P.2d 685, 693 (Cal.
2002). It emphasized that the remedy identified in California law “is not available where a
probability exists that the plaintiff will prevail on the merits.” Id. This position coincides with
the D.C. Court of Appeals conclusion that dismissal under the D.C. Anti-SLAPP Act is only
appropriate where a plaintiff cannot show “an evidentiary basis that would permit a reasonable,
properly instructed jury to find in the plaintiff’s favor.” Mann, 150 A.3d 1239, 1261-62. In
essence, both the California Supreme Court and the D.C. Court of Appeals concur in the
conclusion that dismissing a meritless claim does not violate the First Amendment.6
The Plaintiffs misconstrue the legislation in their argument that the Anti-SLAPP Act does
not satisfy constitutional requirements. The Act specifically directs a court to determine, at an
early stage, whether the plaintiff has legally valid claim. The Act distinguishes between
meritless and meritorious claims, by allowing the plaintiff to overcome a prima facie showing of
protected advocacy through showing that his or her claim is likely to succeed on the merits. As
noted in Mann, this standard “achieves the Anti-SLAPP Act's goal of weeding out meritless
litigation by ensuring early judicial review of the legal sufficiency of the evidence, consistent
6 The Plaintiffs cite jurisprudence from Massachusetts and Illinois in their challenge to the D.C. Anti-SLAPP Act. Contrary to local legislation, the pertinent laws in those states did not provide plaintiffs with an opportunity to show the likelihood of success on the merits. See, e.g., Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 165, (1998); Sandholm v. Kuecker, 962 N.E.2d 418, 431 (Ill. 2012).
11
with First Amendment principles, while preserving the claimant's constitutional right to a jury
trial.” Mann, 150 A.3d at 1232-33.
The Plaintiffs have not met their burden of showing that the Anti-SLAPP Act is
unconstitutionally overbroad on its face. The claim that the Anti-SLAPP Act impinges
unconstitutionally on the rights of plaintiffs to bring legitimate lawsuits to redress real wrongs to
their reputations, because it does not provide a mechanism for determining whether a suit is a
strategic lawsuit against public participation (SLAPP) before applying its sanctions is without
merit. The Act explicitly gives all plaintiffs the opportunity to demonstrate that their grievance
is legitimate by making a preliminary showing regarding the merits of their defamation claims
after providing for targeted, non-burdensome discovery where appropriate. In this litigation, the
Plaintiffs received voluminous discovery under the limited discovery provision of the statute and
will have an ample opportunity to advance the merit of their claims within the framework
established under the Anti-SLAPP Act.
b. The Anti-SLAPP Act does not Infringe on the First Amendment’s Right to Petition
The First Amendment's Petition Clause protects "the right of the people . . . to petition the
Government for a redress of grievances." U.S. Const. Amend. I. The right to petition extends to
all departments of the Government and the right of access to the courts is but one aspect of the
right of petition. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510
(1972). “[T]he First Amendment does not provide plaintiffs with the right to receive a
government response to or official consideration of their petitions.” We the People Found, Inc.
v. United States, 485 F.3d 140, 142 (D.C. Cir. 2007). Additionally, the First Amendment Right
to Petition does not immunize litigants from pursuing baseless litigation. In re Yelverton, 105
A.3d 413, 421 (D.C. 2014). In fact, “First Amendment rights may not be used as the means or
12
the pretext for achieving 'substantive evils' which the legislature has the power to control."
Companhia Brasileira Carbureto De Calcio v. Applied Indus. Materials Corp., 35 A.3d 1127,
1133 (D.C. 2012).
When "a person petitions the government" in good faith, "the First Amendment prohibits
any sanction on that action.” Venetian Casino Resort, L.L.C. v. NLRB, 793 F.3d 85, 89 (D.C.
Cir. 2015). To clarify, the U.S. Supreme Court has differentiated “sanctions” imposed for First
Amendment purposes from common litigation sanctions imposed by courts themselves -- such as
those authorized under Rule 11 of the Federal Rules of Civil Procedure -- or provisions that
merely authorize the imposition of attorney's fees on a losing plaintiff. See BE&K Constr. Co. v.
NLRB, 536 U.S. 516, 537 (2002) (“nothing in our holding today should be read to question the
validity of common litigation sanctions imposed by courts themselves -- such as those authorized
under Rule 11 of the Federal Rules of Civil Procedure -- or the validity of statutory provisions
that merely authorize the imposition of attorney's fees on a losing plaintiff.”).
The Anti-SLAPP Act does not bar plaintiffs from bringing legal actions. It only requires
that plaintiffs demonstrate that a claim is “likely to succeed on the merits” only after defendants
make a prima facie showing that the claim “arises from an act in furtherance of the right of
advocacy on issues of public interest.” D.C. Code § 16-5502(b). This burden-shifting scheme is
designed to protect free speech only in situations where a court finds that a party is using
litigation as a weapon to chill or silence expression. See Doe v. Burke, 133 A.3d 569, 571 (D.C.
2016) (citation omitted). Otherwise, the party seeking redress is free to proceed.
Federal courts have found that requiring plaintiffs to prove their cases early in the
litigation process is not only appropriate to protect free speech but also that summary
proceedings are essential in the First Amendment area. See Farah v. Esquire Magazine, 736
13
F.3d 528, 534 (D.D.C. 2013) (quoting Wash. Post. Co. v. Keough, 365 F.2d 965, 968 (D.C. Cir.
1966)) (summary proceedings are essential in First Amendment cases “because if a suit entails
`long and expensive litigation,’ then the protective purpose of the First Amendment is thwarted
even if the defendant ultimately prevails”); see also Coles v. Washington Free Weekly, 881 F.
Supp. 26, 30 (D.D.C. 1995) (appropriate to scrutinize defamation lawsuits and determine
whether dismissal is warranted at an early stage to avoid the threat of non-meritorious actions
infringing on First Amendment rights).
The Anti-SLAPP Act does not limit the First Amendment right to petition the courts.
The law does not, on its face, bar plaintiffs from bringing suit. As previously stated, the Anti-
SLAPP Act was interpreted as a “tool calibrated to take due account of the constitutional
interests of the defendant who can make a prima facie claim to the First Amendment protections
and of the constitutional interests of the plaintiff who proffers sufficient evidence that the First
Amendment protections can be satisfied at trial.” Mann, 150 A.3d at 1239. See also, Nat'l Ass'n
for the Advancement of Multijurisdiction Practice v. Roberts, 180 F. Supp. 3d 46, 63 (D.D.C.
2015) (law that does not restrict ability to file a petition does not violate First Amendment right
to petition). Therefore, Plaintiffs’ facial and/or as-applied challenge to the Anti-SLAPP Act fails
on these grounds as well. Indeed, Plaintiffs are not barred from bringing their claims and the
burden-shifting requirements under the Anti-SLAPP Act do not violate their First Amendment
Right to Petition.
Finally, the allowance for reimbursement of reasonable attorneys fees incurred when
prosecuting a motion to dismiss under the Anti-SLAPP act does not produce an opposite result.
As quoted above in BE&K Constr. Co. v. NLRB, 536 U.S. 516, 537 (2002), the award of
14
reasonable attorney’s fees against a losing party is neither a “sanction” nor an impermissible
award under the First Amendment.
CONCLUSION
Based on the pleadings, the entire record herein, relevant law, and for the above reasons,
it is this 23rd date of January, 2020, hereby:
ORDERED, that Plaintiffs’ Opposed Motion to Declare the D.C. Anti-SLAPP Act Void
and Unconstitutional is DENIED; it is further
ORDERED, that Plaintiffs and Defendants appear on February 21, 2020 at 2:00 p.m. for
a hearing on the pending motions to dismiss under the D.C. Anti-SLAPP Act. Counsel for
Intervenor, District of Columbia, is excused from further proceedings.
IT IS SO ORDERED.
Judge Hiram Puig-Lugo Signed in Chambers
Copies via Casefile Xpress to all counsel of record.
Deposition Services, Inc. 12321 Middlebrook Road, Suite 210
Germantown, MD 20874 Tel: (301) 881-3344 Fax: (301) 881-3338
[email protected] www.DepositionServices.com
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
- - - - - - - - - - - - - - - x
:
STEPHEN BEHNKE, ET AL., : Docket Number: 2017 CAB 005989
Plaintiffs, :
:
vs. :
:
SIDLEY AUSTIN, LLP, ET AL., :
Defendants. :
: Friday, February 21, 2020
- - - - - - - - - - - - - - - x Washington, D.C.
The above-entitled action came on for a hearing
before the Honorable HIRAM E. PUIG-LUGO, Associate Judge,
in Courtroom Number 302.
APPEARANCES:
On Behalf of the Plaintiff:
THOMAS A. CLARE, Esquire
JOHN B. WILLIAMS, Esquire
BONNY FORREST, Esquire
JOSEPH OLIVERI, Esquire
Washington, D.C.
On Behalf of Defendant American
Psychological Association:
BARBARA S. WAHL, Esquire
Washington, D.C.
On Behalf of the Sibling Defendants:
THOMAS G. HENTOFF, Esquire
Washington, D.C. 20-01242
TKG
2
P R O C E E D I N G S 1
THE DEPUTY CLERK: Your Honor, calling number 2
six on the calendar, 2017 CA 5989, Stephen Behnke, et al 3
versus Sidley Austin, LLP, et al. Parties please step 4
forward and identify yourself for the record. 5
MR. HENTOFF: Good morning, Your Honor. This 6
is Thomas Hentoff for the Sibley defendants. 7
THE COURT: Mr. Hentoff. 8
MS. FORREST: Good morning, Your Honor. Bonny 9
Forrest for the plaintiffs, Tom Clare for the plaintiffs, 10
Joel Oliveri for the plaintiffs, and John Williams for 11
the plaintiffs. 12
THE COURT: Okay, good morning. 13
MS. WAHL: Good morning, Your Honor. Barbara 14
Wahl on behalf of the American Psychological Association. 15
With me is the general counsel Deanne Ottaviano. 16
THE COURT: Okay, thank you very much. Please 17
have a seat. Let's start out by placing on the record 18
the reason that we are here. 19
On April -- I'm sorry. On August the 28th, 20
2017, the plaintiffs filed a complaint against 21
defendants, American Psychological Association, Sidley 22
Austin, LLP, Sidley Austin, D.C. LLP and David Hoffman, 23
Esquire. 24
They raised concerns regarding defamation per 25
TKG
3
se, defamation by implication and false light invasion of 1
privacy. 2
On October 13th, 2017, the defendant, American 3
Psychological Association and defendant Sidley Austin, 4
LLP, Sidley Austin D.C. LLP and David Hoffman, Esquire 5
filed separate contested special motions to dismiss under 6
the D.C. Anti-Slap Act. 7
Now, at the time there were related cases in 8
the Ohio court system and in the Massachusetts court 9
system. So, at some point subsequent to the filing of 10
the motions to dismiss under the Anti-Slap Act, a stay 11
was granted, and we waited for matters to continue in the 12
other jurisdictions. Eventually the stay was lifted. 13
There was some discovery provided. On February 14
the 4th, 2019, the plaintiffs filed a supplemental 15
complaint adding an additional claim of defamation per 16
se. That supplemental complaint resulted in a second set 17
of motions to dismiss under the D.C. Anti-Slap Act. Both 18
motions, one on behalf of each set of defendants were 19
filed on March the 21st, 2019. 20
Now, the plaintiffs filed two opposition 21
motions, one to each set of special, contested special 22
motions to dismiss under the D.C. Anti-Slap Act. 23
Counsel for the plaintiff attempted to file 24
both of them on November the 15th. One was accepted, the 25
TKG
4
other was not. So, interestingly the consolidated 1
opposition to the second set was filed on November 15th, 2
2019, and a consolidated opposition to the first set was 3
filed, technically, three days later on November the 4
18th. 5
On December the 13th each defendant, and by 6
each I mean the American Psychological Association and 7
separately Sidley Austin, LLP, Sidley Austin D.C. LLP and 8
David Hoffman, Esquire filed replies to a different 9
oppositions that were filed against both sets of 10
contested special motions to dismiss under the Anti-Slap 11
litigation. I'm sorry, under the Anti-Slap Act. 12
Now, I have all your pleadings with me. It is 13
the defendants who started the Anti-Slap portion of this 14
litigation with their respective filings. So, Mr. -- 15
let's do it alphabetically since they were both filed in 16
the same day. Ms. Wahl, anything you'd like to add to 17
the APA's motions to dismiss under the D.C. Anti-Slap 18
Act? 19
MS. WAHL: Your Honor, our papers I think are 20
rather full and you've been able to get through them we 21
appreciate that and the only thing I would add for 22
purposes of oral argument is to emphasize certain points, 23
or answer any questions that the Court has. 24
THE COURT: What points would you like to 25
TKG
5
emphasize? 1
MS. WAHL: With regard to the original 2
complaint, I'll start there. It is the APA's position, 3
for the reasons stated in our papers collectively because 4
we've relied on the papers filed by the Sidley defendants 5
as well that the defendants -- sorry, excuse me -- the 6
plaintiffs are public officials, and that an actual 7
malice standard is appropriate here, and that basically 8
all APA did here was to hire an excellent law firm and 9
for a specific project, an independent review. The 10
Sidley team was headed up by a lawyer of excellent 11
repute. Not even the plaintiffs have criticized APA for 12
hiring Sidley and hiring Mr. Hoffman. 13
And then APA was entitled, and still is 14
entitled to rely on the results of that report, which as 15
the briefing has indicated was extensive, and I know that 16
the Court has read in the, every brief we filed how 17
extensive it is. I will not belabor that. 18
The retainer agreement was very specific. It 19
said that Sidley essentially had carte blanche to go 20
anywhere it wanted, to be fully independent, go wherever 21
the evidence led, and that the report was going to be 22
made public, and Sidley's assignment was very specific. 23
It was to conduct an independent review relating to 24
allegations that following the attacks of September 11, 25
TKG
6
2001, the APA colluded with U.S. government officials to 1
support torture with regard to the interrogations of 2
detainees who were captured and held abroad. Obviously, 3
the focus here was on APA, the client. 4
The standard that the defendants, or I should 5
say the plaintiffs have to meet the actual malice 6
standard is a very difficult one, and they have to prove, 7
obviously, pursuant to well established Supreme Court 8
precedent that at the time of the publication of the 9
report APA entertained subjective doubts as to the truth 10
of specific statements in the 542 page report. It can't 11
be that Sidley had doubts. It has to be that APA did. 12
The plaintiffs will show this by clear and 13
convincing evidence and that evidence must be admissible, 14
and it must be proved specifically as to APA. St. Amant 15
is instructive on this point because recognizing that 16
that is a very difficult standard for plaintiff to meet, 17
the Court has nonetheless said there are three 18
circumstances where a plaintiff can make that showing. 19
One if the statement is fabricated, two if it's the 20
product of the defendant's imagination, or three if it's 21
based wholly on an unverified source. None of those 22
circumstances are present here, and the plaintiffs have 23
alleged none of those circumstances. 24
Instead what they have attempted to do is to 25
TKG
7
cobble together specific circumstances that the courts 1
have uniformly said do not constitute actual malice when 2
viewed independently, and instead what they have said is, 3
well, let's try to aggregate each of these independent 4
instances and see if the sum can be greater than the 5
individual parts, and just by way of brief introduction 6
those are the following circumstances, all of which have 7
been rejected as circumstances that show actual malice by 8
either the D.C. courts or related courts. 9
Departure from professional standards, ill 10
motive, mistake, misinterpretation, failure to check 11
files, collateral evidence pertaining to another 12
plaintiff, or another person, and the fact that the 13
evidence is not mutually exclusive. In other words, it 14
has to be, the statement has to be clearly mutually 15
exclusive to the truth. If they could be consistent 16
that's not good enough. 17
So, the plaintiffs here have attempted to 18
cobble these together and gone through each of these 19
non-actual malice factors and tried to make a case 20
against APA. 21
So, the first, the preconceived narrative, they 22
don't even allege that as against APA. That's actually a 23
Sidley matter. 24
Animus or motive, they have alleged in the 25
TKG
8
complaint that APA was trying to blame a small group of 1
psychologists to deflect blame from the bigger group. 2
Specifically they cite to two radio interviews given by 3
Dr. Nadine Kaslow who was the chair of the special 4
committee, and they say, see, she made these comments 5
about how it was a small group, a small underbelly. If 6
the Court listens to those interviews you will see that 7
the plaintiffs have actually mischaracterized Ms., Dr. 8
Kaslow's comments. 9
What she said, very clearly, is that the report 10
finds that there is a small group at issue here. That 11
was not her own opinion, and that is not enough for 12
action of malice. 13
They also criticized the AP Board, APA Board 14
for meeting with two of the critics of the plaintiffs, 15
allegedly of the plaintiffs, right after the report was 16
first published, and they say that that is, was somehow 17
improper. What they fail to note, but the report makes 18
clear is that these critics were also critics of the APA 19
itself, and Dr. Susan McDaniel, who was the president 20
elect of APA at the time has stated, and this is in the 21
record, that the reason why we met with them was because 22
we had been criticized for not paying enough attention to 23
the critics, and this was our effort to hear them out, 24
and to heal the organization. That too does not 25
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9
constitute actual malice. 1
The plaintiffs have alleged that APA departed 2
from professional standards. Are rather oblique about 3
this, but they seem to indicate there was some sort of 4
conflict of interest because the special committee 5
members had also participated in activities that were 6
addressed in the report. They don't cite why that is a 7
conflict of interest, and we don't believe that it is. 8
I note that they also have indicated elsewhere 9
in their brief that because of those special committee's 10
members earlier participation in APA activities, that 11
that should have given them knowledge that the report was 12
false. So, they can't have it both ways. You can't 13
allege that it was wrong to do it, and then also allege, 14
oh, but we rely on it, and we're glad that you were 15
there. 16
They fault APA for failing to consult with the 17
plaintiffs before publication. There is no obligation to 18
do so. The Cecord v. Cochran (phonetic sp.) case, D.C. 19
1990 case makes that very clear and in fact Sidley and 20
Mr. Hentoff I'm sure will address this, did in fact 21
consult with the plaintiffs extensively before 22
publication. 23
They also criticize APA for rushing to publish 24
the Talovarious (phonetic sp.) case makes clear that that 25
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10
is not a factor for ill will. They also criticize APA 1
for failing to advise that Sidley had expanded the scope 2
of the investigation, but as the Sidley retainer 3
agreement stated, Sidley would go anywhere. It was 4
supposed to follow the evidence where it led. There 5
was -- 6
THE COURT: Failure to advise who? 7
MS. WAHL: Unclear. Apparently the plaintiffs, 8
but they haven't made that clear because part of their 9
briefing, Your Honor, has to do with matters pertaining 10
to Dr. Newman and Dr. Behnke who are no longer plaintiffs 11
in this case. In fact, when we get to that section 12
pertaining to their complaints of mishandling of the 13
ethics process within APA, it's entirely focused on Dr. 14
Behnke, which has nothing to do with these plaintiffs. 15
They -- so, they complain about effectively, 16
Mission Creep as I'll call it, but there was no Mission 17
Creep because it was open season everywhere pertaining to 18
this. 19
They have criticized APA for its refusal to 20
retract the report, or to make corrections that they 21
thought ought to be made. In fact, APA, there was an 22
errata sheet that was issued, and there was a second 23
report that was issued, and there were corrections that 24
were made. The fact that the plaintiffs were not 25
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11
satisfied with those corrections does not constitute 1
actual malice. 2
And last but not least they accuse APA of 3
purposeful avoidance of the truth. That is clearly not 4
the case. APA, after publication, opened up its website 5
to any critical comments, responses, commentary that 6
anybody wanted to make. In fact, there were two separate 7
places where you could do that. One was for individuals 8
who were mentioned in the report. Another was for any 9
member of the public who wanted to comment and they did. 10
As the defendants themselves posted commentary and their 11
own division, the Division 19, the Society for Military 12
Psychologists published an extensive report, which is 13
actually on the APA website responding to the Sidley 14
report. 15
THE COURT: The plaintiffs responded? 16
MS. WAHL: The plaintiffs -- 17
THE COURT: Okay. 18
MS. WAHL: -- themselves did respond. Yes, 19
Your Honor. They did by posting commentary on the 20
website and then they did also through their own 21
division. 22
None of these criticisms, none of these 23
circumstances, individually or in the aggregate, support 24
a finding of actual malice. Simply insufficient. 25
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12
The plaintiffs have organized their commentary, 1
their criticisms of the report itself into three big 2
picture items, and these have been referred to in all of 3
the parties briefing just by shorthand and reference. 4
The first has to do with the Pens Task Force Report. 5
They contend that the report's conclusion that there was 6
collusion between the APA and certain Department of 7
Defense officers to create high level guidelines that 8
would permit the military to do what it wanted to do in 9
terms of interrogations was false. 10
The second category is that in the period 2006 11
to 2009 the effort, the report found that there were 12
efforts to delay or prevent the passage of various APA 13
polices that would have precluded psychologists from 14
participating in interrogations of detainees. 15
And the third big picture is the mishandling of 16
ethics complaints. As eluded to a moment ago the third 17
category we can get rid of right here because the 18
mishandling of ethics complaints was focused entirely on 19
an ethics issue involving a Lieutenant Lesso (phonetic 20
sp.), and all, all of the arguments made by the 21
plaintiffs about that third conclusion are focused on 22
that these plaintiffs had nothing to do with that. They 23
were not employees of the APA, they were not even 24
involved, according to the report, and in the Lesso 25
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13
investigation, and there is nothing indicating their 1
involvement. So, that should be right off the table. 2
With regard to conclusions one and two, the 3
plaintiffs have tried valiantly but unsuccessfully to 4
thread the needle about how to make an argument. Of 5
course, their task is to demonstrate that APA, and that 6
would be the APA board in 2015, that made the decision to 7
issue the report, publish the report, that at the time 8
they did so they subjectively had serious doubt as to the 9
truth of matters, specific matters in the report. 10
So, the way the plaintiffs try to prove this is 11
a sort of guilt by association, and we submit to you, 12
Your Honor, that they fall very far short from proving 13
anything whatsoever. 14
What they do, and this is what they have shown 15
on their Exhibit B to their opposition to the Anti-Slap 16
motion, this is the first complaint, they take members of 17
the 2015 board and they make an assumption that these 18
individuals read the report, understood what the 542 page 19
report said, and that they voted in favor of this 20
release. There is nothing in the record that 21
demonstrates any of those three points. 22
Then they go to the next aliup (phonetic sp.) 23
position, which is that they then take some of those 24
board members and they say, well, you were on APA 25
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14
committees that had to do with some of the issues that 1
are discussed in the report, and there are a number of 2
these. The 2005 PENS report, the 2007 resolution, the 3
2007 Ray Affirmation Resolution, the 2007 resolution, the 4
2009 petition resolution, and a proposal by a member 5
driven task force. What they say is because you served 6
on committees that had something to do with these 7
proposals, we're going to make the assumption that you 8
knew that there was something going on related to that, 9
that is not true in the report. 10
How this all is supposed to tie in they don't 11
explain, and there's a problem. They can't demonstrate 12
that any individual who served on the 2015 board, and who 13
also served on a committee, perhaps in 2006, that their, 14
they participated in whatever was being discussed, that 15
they voted in favor of it, that they understood nine 16
years later that there was a mutually exclusive position 17
taken by that committee in 2006, and some statement in 18
the extensive report. There is no proof there. 19
And then last but not least, they try to 20
identify a statement in the report that the claim is 21
mutually exclusive, and I have spent a lot of time 22
focusing on that, Your Honor, and so does our brief. 23
There is nothing that is mutually exclusive. There is 24
simply nothing. None of this works. It falls apart at 25
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15
each step, step. 1
The plaintiffs have not been able to adduce 2
admissible evidence to demonstrate that APA subjectively 3
understood that there was anything false about the report 4
when they published it. 5
So, in sum, they, APA hired a law firm of good 6
repute headed by a lawyer whose credentials are 7
impeccable and they were entitled to entrust the mission 8
that they tasked the law firm with to handle, and they 9
did. The factors that the plaintiffs have attempted to 10
aggregate don't add up. 11
I suppose last but not least I do want to say 12
one thing about the board. They have taken the position 13
that one board, the 2005 board, that one board member's 14
knowledge of falsity is imputed to the entire board, and 15
they cite a D.C. statute for that position, and they 16
actually miscite the statute. 17
There is nothing that says that one board 18
member's knowledge actually is imputed to everybody else 19
on the board and there is no case law that they have 20
provided that would say that. Instead the statute that 21
they have cited, which D.C. Code Section 29-406.30 says 22
that, 23
"A director shall disclose information if he 24
or she believes it's material to the 25
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16
discharge of their decision making, and 1
other board members can rely on that." 2
But they haven't made the case here that 3
anything qualifies, or that anybody on the 2015 board 4
knew or understood there were any falsehoods. These 5
juxta positions, you were on a committee, maybe you knew, 6
maybe you understand, don't equal actual malice. 7
And I can go on to re-publication if the Court 8
would like, or we can allow others to speak as you 9
prefer. 10
THE COURT: I defer to you, but I appreciate 11
that if you have any arguments to make, you make them all 12
at one time before I hear from anybody else. 13
MS. WAHL: So, I'll go briefly on to 14
re-publication. 15
This is the addition to the supplemental 16
complaint. There was a new, new count 11 in which the 17
plaintiffs contended that changes to the APA website 18
constituted re-publication of the report. 19
Just so the record is clear on this and I 20
believe it is but I'm going to -- you asked me what I 21
wanted to emphasize, and this is what I'd like to 22
emphasize. There were no changes to the report. It 23
stayed substantively content-wise exactly the same. 24
There were no additions or subtractions. It's URL did 25
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17
not change. It stayed on the website. 1
It's landing page was deleted but the content 2
of the report itself remained the same. No new audience 3
was sought for the report. It was still available to the 4
public just as it had been. There was no act by APA, 5
which is one of the two critical pieces for 6
re-publication by which the audience was expanded. 7
The other activities that, or I should say the 8
other additions to the website -- sorry -- to the 9
timeline. So, just to back up a minute. These materials 10
are all found by links on a timeline on the APA website. 11
The documents themselves are not posted on the APA 12
website. They are all paper links. 13
After 2000 -- August 2018, as a result of this 14
motion, which I'll talk about in a moment, they following 15
or added to the timeline. These were all links. A 16
letter from prior ethics chairs that was critical of the 17
report. A letter from prior APA presidents that was 18
critical of the report. A report from Division 19, that 19
is the Society of Military Psychologists, critical of the 20
report. A notation, just a statement, not a hyper-link, 21
that five members of, the five plaintiffs had filed the 22
instant lawsuit. 23
Five plaintiffs filed a lawsuit against the 24
association rising out of the publication of the 25
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18
independent review. The semiquinone of re-publication is 1
the two factors, that there be a change in content and 2
that a new audience was sought. Neither thing happened 3
here. In fact, one could argue that the opposite was the 4
case. By removing the landing page that might be viewed 5
as restricting the readership, and certainly the 6
materials that are critical of the report do not add and 7
emphasize the report itself. 8
And under the case law even they had, even if 9
they make reference to the report, that is insufficient 10
for re-publication. Our briefs document the many, many 11
cases that state that just simply referring to a document 12
is insufficient for re-publication. 13
The plaintiffs also allege that a memorandum, 14
actually it was just a, an e-mail from the general 15
counsel to the counsels list serve letting them know 16
about the passage of this motion and the changes to the 17
website, and gave a link to the timeline, not to the 18
report, that that somehow is re-publication. It is not. 19
Again, just referring not even to the documents, just to 20
the timeline. 21
And last but not least the posting of the 22
counsel minutes where this motion was passed, on the APA 23
website, which they always do, this is routine practice, 24
that again references only the changes and does not 25
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19
constitute re-publication. 1
It is noteworthy, we believe, as to how this, 2
how these changes came about. Supporters of the 3
plaintiffs had brought a motion seeking to have the 4
report removed in its entirety from the APA website. 5
Again, I should be specific. The report is not on the 6
website. It's a link. They wanted the link to be 7
removed. 8
There was an amendment proposed to that motion, 9
and the amendment suggested the modifications that I have 10
just described to you. That amendment passed, and that 11
is how these changes came to be. The, there were no 12
modifications to the report, no audience that expanded 13
the viewership of these materials. 14
Plaintiffs have cited a few cases where 15
re-publication has occurred, but these -- the Aramo 16
(phonetic sp.) case for example, the Larue (phonetic sp.) 17
case, these are cases where there weren't additions, 18
modifications, and new material added to the allegedly 19
defamatory statements. That is not what we have here. 20
So, it's our position that there is no 21
re-publication, and count 11, and actually everything, 22
all of the additional material added to the supplement 23
complaint should be dismissed pursuant to the special 24
motion. 25
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20
THE COURT: Thank you, Ms. Wahl. 1
MS. WAHL: Thank you, Your Honor. 2
THE COURT: Mr. Hentoff, anything you'd like to 3
add to your written submission? 4
MR. HENTOFF: Yes, Your Honor. Thank you. 5
Will we have an opportunity to respond to plaintiffs 6
arguments? 7
THE COURT: Yes, sir. 8
MR. HENTOFF: All right, thank you. I just 9
want to start with a couple of points of clarification. 10
So, with regard to the actual malice standard, the issue 11
for the Court to consider is what was the defendant's 12
state of mind at the time of publication. 13
So, in this case, for Sidley, the last 14
publication for which Sidley was responsible was the 15
revised report with the eratta sheet on September the 16
4th, 2015, and that's the report that we have provided to 17
the Court as an exhibit, and Ms. Wahl referred to that as 18
a second report was issued. I just want to make sure 19
it's clear that there was an eratta sheet, and changes 20
made pursuant to the eratta sheet, and that's the revised 21
report that we presented to the Court as an exhibit. 22
Also, with regard to the three primary 23
allegations that the plaintiffs briefing talks about, and 24
the third one being what Sidley found with regard to 25
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21
ethics adjudications. At least with regard to the 1
briefing involving Sidley, plaintiffs did complaint about 2
additional adjudications beyond the Lesso adjudication. 3
One of the adjudications they complained about was the 4
adjudication as it related to plaintiff James, and we 5
talk about all of that fully in our reply brief, and I, 6
and I am satisfied with the arguments that we made and 7
presented in our reply brief. 8
So, so, beyond that I would like to talk about 9
the big picture a little bit, and answer any questions 10
the Court may have, but I'll defer to the Court on what's 11
the best use of time here. 12
THE COURT: I don't have any questions at this 13
point. I'm just giving you a chance to supplement your 14
submissions. 15
MR. HENTOFF: Well, a couple of things then. 16
So, as the Court can tell from all the written 17
submissions there are a number of issues that these two 18
motions raise for the Court to decide. They include, 19
does the, does the D.C. Anti-Slap Act protect the Sidley 20
report. 21
Let me just back up for a second, of course. 22
Under the D.C. Anti-Slap Act the defendants have to make 23
the threshold showing that their speech is protected by 24
the act, and then once they've done that the burden 25
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22
shifts to the plaintiffs to show that they can show a 1
likelihood of success, which as the Court knows the D.C. 2
Court of Appeals in Mann (phonetic sp.) says, that 3
effectively a summary judgment standard, and that the 4
summary judgment standard applying the applicable 5
evidentiary burden. 6
Our motion, our original motion is based on the 7
plaintiffs inability to establish actual malice, which 8
they have to do, by clear and convincing evidence, which 9
is a very high evidentiary burden. 10
So, the issues that are raised by the motion, 11
and which we have fully briefed are, does the act protect 12
the speech, are plaintiffs public officials subject to 13
the actual malice standard, have plaintiffs presented 14
sufficient evidence of direct or circumstantial actual 15
malice in order to meet their burden, and then on the 16
Count 11, have they shown that Sidley had any involvement 17
in the APA website changes that could subject Sidley to 18
any liability for publication or re-publication of the, 19
in connection with the August 2018 website changes. And 20
then finally, plaintiffs make a choice of law argument, 21
and we set forth clearly in our reply brief why D.C. law 22
should apply. 23
So, those are the issues, and I would just like 24
to take moment to talk about the big picture. 25
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23
The reason we're here is that in November 2014, 1
APA faced a big controversy, and the controversy came 2
about because a New York Times author published a book 3
that accused psychologists and the APA of colluding with 4
the Bush Administration, military CIA colluding to 5
support enhanced interrogation techniques that amounted 6
to torture. And APA decided they needed to have an 7
independent party come in, do an independent 8
investigation and report what happened, and APA 9
committed, at that time, that they would make that report 10
public, and in November of 2014 they hired Sidley and 11
David Hoffman to conduct a definitive, independent and 12
objective review of the allegations against APA and look 13
at all relevant evidence. 14
Sidley conducted that review, reached the 15
conclusions that we've been talking about in this case, 16
and APA made good on its word and made the report public.17
This is precisely the type of important speech 18
on matters of the most significant public concern, that 19
is the reason why the D.C. city council enacted the D.C. 20
Anti-Slap Act to avoid chilling speech with litigation 21
that lacks merit. 22
Even today the issue of psychologists 23
participation in national security interrogations is all 24
over the news. There was testimony in Guantanamo last 25
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24
month by the psychologist James Mitchell. 1
So, we've shown in our papers that the 2
defendants met their threshold burden of showing the 3
protection of the Anti-Slap Act, and that then shifts the 4
burden, burden to the plaintiff to establish, with regard 5
to the main motion, that they can show that Sidley 6
published false statements about the plaintiffs with 7
actual malice, which means that Sidley knew statements 8
about the plaintiffs were false, were highly aware that 9
they were probably false, or made false statements about 10
the plaintiffs with serious subjective doubts as to, as 11
to falsity. 12
As we discuss in our briefs -- 13
THE COURT: Is it serious subjective doubts or 14
subjective doubts? 15
MR. HENTOFF: I believe it's serious subjective 16
doubts, Your Honor, but I'll stand on our papers as to 17
where I, where we wrote it. 18
As we have discussed, Sidley was brought in 19
because it was independent. It worked eight months on 20
this report. It reviewed tens of thousands of documents. 21
Sidley interviewed 150 people, and I think most 22
significantly, for all of plaintiffs arguments, Sidley 23
conducted 50 follow-up interviews. This was not checking 24
the box. And then Sidley provided the report to the APA 25
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25
board of directors, the board made the report public, 1
along with the report was over 540 pages, and it was 2
provided to the public along with more than 7000 pages of 3
supporting exhibits. 4
This is so far from all the case law that the 5
plaintiffs have presented about circumstantial evidence 6
of actual malice. What it's most like is the Tally case 7
in the 10th Circuit, which his a case that came out in 8
2019 after our original brief were filed, and we talk 9
about the Tally case in our reply brief. 10
There reporters for Sports Illustrated engaged 11
in a much less extensive investigation than this, but a 12
serious investigative report, and the 10th Circuit went 13
over all the serious attempts that Sports Illustrated did 14
to investigate, and I would they are sort of like a mini 15
version of what Sidley here did, and the Court also went 16
over various attempts to establish circumstantial 17
evidence of actual malice and rejected them. 18
And, again, as far as the circumstantial 19
evidence goes, as we show in our reply brief, every, 20
every area of circumstantial evidence that plaintiffs 21
allege is wrong in two respects. The first is, they get 22
the law wrong about the weight that that kind of evidence 23
gets on the way to establishing that they could show 24
actual malice by clear and convincing evidence, and then 25
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26
secondly when the facts are examined they fall apart. 1
And just to give one example, the plaintiffs 2
alleged that, and we talk about this in our brief, but 3
the plaintiffs alleged on page one that Sidley had a 4
preconceived narrative. Number one the law says, merely 5
setting forth with a preconceived narrative is not 6
evidence of actual malice, but they can't even provide 7
any evidence that Sidley did, did come into this with a 8
preconceived narrative, and the evidence that plaintiffs 9
provide on page on of their opposition is a quote of 10
David Hoffman saying, we set out to make our case, and 11
the plaintiff said, see, they didn't set out to find the 12
truth, they set out to make their case. 13
Well, they linked to an exhibit, which was a 14
newsletter from APA, which reported on David Hoffman's 15
talk to the APA counsel in August of 2015, and we 16
attached that exhibit again to our reply brief and we 17
showed the plaintiffs had just baldly misquoted what Mr. 18
Hoffman said. We actually said is we did our 19
investigation. We reached our conclusions, and then when 20
we set out to write it out, we set out to make the case 21
that we found. 22
So, that's just one example of the plaintiffs 23
factual allegations of actual malice, not, not 24
withstanding scrutiny. We have more in our reply brief. 25
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27
And I guess the final point that I would make 1
is that plaintiffs also present what they call, so-called 2
direct evidence of, of actual malice, and in all cases 3
what they call direct evidence is, they allege that there 4
is information that Sidley had, which contradicts 5
statements that Sidley made in the report, and I have two 6
things to say about that and then I'll be done. 7
Just give me one moment. Okay, so, the first 8
is, as we presented in our briefing, merely having 9
contradictory evidence, is not evidence that you made 10
false statements about someone believing them to be 11
false. Any complex investigation is going to come up 12
with contradictory evidence. 13
It's probably why there is an investigation in 14
the first place, and defendants are permitted to evaluate 15
the contradictory information and make their judgments. 16
So, I refer the Court to a case that we cite in our 17
briefs, the D.C. Circuits Lorens v. Donnelly (phonetic 18
sp.) at 350 F.3d 1272 at 1284, and the Court says, the 19
mere proffering of purportedly credible evidence that 20
contradicts the publisher's story is just not enough for 21
that reason. 22
And then my final point is, just like with the 23
circumstantial evidence of actual malice, this evidence 24
of so-called direct, direct evidence of actual malice 25
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28
just falls away when you look at it, and we present it in 1
detail in our reply brief and I won't repeat it here, but 2
in each case the plaintiffs say the report says 3
something, and then we show in our reply brief that the 4
report doesn't say what the plaintiff says it says, and 5
therefore, all the evidence that they present as 6
contradicting it doesn't, and therefore, doesn't even 7
meet that first step of even showing that there is a 8
contradiction, which as I've said it isn't enough. 9
So, unless the Court has any questions for me 10
at this time I'm happy to let the plaintiffs go. 11
THE COURT: What's the outcome if the actual 12
malice standard doesn't apply? 13
MR. HENTOFF: I apologize, Your Honor. I 14
didn't hear you. 15
THE COURT: What is the outcome of your motion 16
if the actual malice standard is not the correct one to 17
apply? 18
MR. HENTOFF: Our motion is entirely based on 19
the actual malice standard. We do not make a negligence 20
argument. 21
THE COURT: And you're not going to make one. 22
MR. HENTOFF: The whole point of this quick 23
look under the Anti-Slap Act, is to take a look as to 24
whether the case has merit, and I don't think a 25
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29
negligence case is an appropriate motion to bring on an 1
Anti-Slap motion, but what I would say is, so that's the 2
answer to your question. 3
And the law is very clear. I think that it's, 4
I think the law couldn't be clearer that these three 5
plaintiffs, all colonels in the military at the time, who 6
talked about their significant responsibility with regard 7
to detainee interrogation, and their work in drafting 8
creating policies, they are quintessential public 9
officials. 10
The plaintiffs make three arguments in this 11
regard, or really they mostly make two. So, the first 12
argument they make is time of publication. It's only 13
relevant if you're a public figure at the time of 14
publication. 15
We address that fully in our reply brief. The 16
leading defamation treatise says, you know, it's, it's 17
conceivable that there might be some, you know, passage 18
of time in some strange circumstance in which too much 19
time has passed, but that's not -- I'm not aware there 20
was even a case that ever held it, and in here we're 21
talking about what happened in the, in the, in the 2000's 22
with APA, and all of the plaintiffs were colonels at the 23
time in the military, and all the cases that actually 24
have a holding as opposed to dictum say, you look at 25
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30
their status at the time. 1
Secondly, the plaintiff said, well, we're not 2
high enough. You have to be a really high official to be 3
considered a public official, and the case law just 4
doesn't say that. 5
The most important case is the Supreme Court 6
case in Rosenblatt in 1966, and it basically says, if the 7
nature of your responsibilities are such that they affect 8
people, you qualify as a public official. And so, we 9
present case law about all sorts of different types of 10
government officials who qualify as government officials. 11
And, again, we've got people here who are, you 12
know, managing, and supporting psychologists working with 13
interrogations setting policies. These are people who 14
are way above in terms of their responsibilities, any 15
plaintiff who was ever successful in getting a finding 16
that they were not a public official. And then 17
plaintiffs also in passing say, well, we weren't speaking 18
for the Department of Defense when we were involved in, 19
in the PENS Task Force therefore we're not public 20
officials. 21
But as we present in our reply brief, they 22
talked about their work when they were involved in the 23
APA, and Sidley talked about them talking about their 24
work, and Sidley talked about their work, and the 25
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31
plaintiffs alleged that they were defamed, that they were 1
accused by Sidley of supporting abusive interrogations. 2
This report is not about their, is not about 3
their life outside of their responsibilities as, as 4
colonels in the military with responsibility for, you 5
know, for psychologists supporting interrogations. 6
That's what this report is about. 7
So, in every respect the plaintiffs are 8
squarely qualified as public officials such that the 9
actual malice standard applies. 10
THE COURT: Thank you, Mr. Hentoff. Ms. 11
Forrest, anything you'd like to add to your written 12
submissions? Okay, then I guess it's not going to be Ms. 13
Forrest. You are Mr. Clare? 14
MR. CLARE: I'm Mr. Clare, yes. Yes, Your 15
Honor, from the law firm Clare Locke, and it's -- 16
THE COURT: Okay, Mr. Clare. 17
MR. CLARE: -- my first opportunity to appear 18
before Your Honor. I appreciate the opportunity to speak 19
very briefly. I'm going to turn it over to Ms. Forrest 20
in just a moment, and she is going to walk through the 21
evidence that supports -- 22
THE COURT: Okay, just so we're clear, I'm 23
giving you an opportunity to supplement. You're not 24
going to reargue all of this because this has already 25
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32
been examined, okay. 1
MR. CLARE: Of course not. Of course not. 2
THE COURT: All right, please proceed. 3
MR. CLARE: I think that some of the arguments 4
that Your Honor has heard this morning, and in some of 5
the defendants papers, there is a misapprehension of the 6
applicable law to establish actual malice. And to 7
establish actual malice, at this preliminary stage of the 8
proceeding, actual malice, just like any other culpable 9
state of mind in the law, can be proven a variety of 10
different ways with competent evidence. 11
It is a demanding standard, but it is not 12
prohibitively high, and it is especially not 13
prohibitively high at this stage of the proceedings. 14
The key issue that has to be decided by the 15
Court is whether at this preliminary stage the plaintiffs 16
have proffered sufficient evidence of actual malice, and 17
what types of evidence the Court is allowed to consider 18
in that. As Mr. Hentoff said, we have offered both 19
direct and circumstantial evidence of actual malice. 20
The role of the Court at this stage is vital. 21
It is a summary judgment standard. The Mann case is very 22
clear that this is not a, a tryer of fact role for the 23
Court. It is, quote, it is not the Court's role at the 24
preliminary stage of ruling on a special motion to 25
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33
dismiss to decide the merits, close quote. 1
And so, the Court is not sitting as a trier of 2
fact, but rather playing the gatekeeper role that the 3
Court is familiar with on a summary judgment standard, is 4
do we have enough where a reasonable juror, with all 5
evidentiary inferences in our favor, could find actual 6
malice, if that is the applicable culpable standard for 7
the law. 8
And in the defamation arena the Supreme Court 9
has recognized that it is especially challenging for a 10
defamation plaintiff to establish actual malice because 11
you're talking about the state of mind of a defendant, 12
and no defendant says, yes, I harbored subjective doubts 13
about this when I published this news article, or this 14
report. No defendant will admit that I acted with 15
reckless disregard of the truth. 16
And so, the courts, the Supreme Court says, 17
plaintiffs, just like any other culpable state of mind in 18
the law, are entitled to prove actual malice through the 19
use of circumstantial evidence. That's the Herbert v. 20
Lando case, 1979. A defendant cannot simply prevail by 21
testifying that it acted in good faith, and you heard 22
some argument this morning from Ms. Wahl about the St. 23
Amant case, where she described the three factors that 24
can, where actual malice can be found. 25
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Those are absolutely a non-exclusive list of 1
ways that actual malice can be found. Sure, fabrication 2
can establish actual malice, if you have that evidentiary 3
foundation, but what the courts have said in every single 4
defamation case, starting with the Supreme Court after 5
St. Amant, is that the court must take a holistic 6
approach to evaluating the evidence, and that plaintiffs 7
are entitled at every stage, to an aggregate 8
consideration of that evidence in order to determine 9
whether that burden is met. 10
Each individual piece cannot fairly be judged 11
individually, and so, what you've heard this morning, and 12
what you see in the defendants briefs, is an effort to 13
try to take each one of these pieces of evidence and 14
point to a case where it was found, standing alone, not 15
to be sufficient evidence of actual malice, and in the 16
very highly fact specific situations of those cases, that 17
may or may not have been the right decision. 18
What we are saying, Your Honor, is that it is 19
the aggregate consideration of all of the circumstantial 20
evidence, with all of the inferences from that -- with 21
any reasonable inference from that evidence being drawn 22
in the plaintiffs favor, is more than enough to get over 23
the hurdle of demonstrating, at this preliminary stage, 24
actual malice. 25
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35
And I would invite the Court's attention to 1
the, again, the Herbert v. Lando case. It's a 1979 case 2
decided 11 years after St. Amant, and the Supreme Court 3
was very clear, in rejecting exactly this argument that 4
you need to look with a, a very myopic focus on 5
individual buckets of evidence. The Court said quote, 6
any competent evidence, either direct or circumstantial 7
can be resorted to, and all the relevant circumstances 8
surrounding the transaction may be shown, including prior 9
or subsequent defamations, subsequent, meaning post 10
publication statement of the defendant, post publication 11
actions. So, even things that took place after the 12
publication can be considered as whether it bears 13
circumstantially on the defendant's state of mind. 14
Returning to the quote, circumstances 15
indicating the existence of rivalry, ill will or 16
hostility between the parties, and facts tending to show 17
a reckless disregard of the plaintiffs rights. That's 18
the Herbert v. Lando case. 19
And so, Mr. Hentoff and Ms. Wahl are correct in 20
one very myopic sense of arguing to the Court that there 21
are cases where the plaintiffs evidence was such where 22
they said, yep, we have ill will, or bias, or malice, and 23
that's our evidence of malice is they didn't like us when 24
they published this article, and the Court has said, 25
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36
under the very specific facts, that, yes, ill will and 1
bias, standing alone, may not be sufficient of evidence 2
of actual malice, but those cases do not stand for the 3
proposition that that's not competent evidence, or in 4
aggregate when considered with all of the other body of 5
evidence, cannot establish actual malice. 6
So the analogy that I think is an apt one, is 7
that it's like building a wall, it's a brick wall of 8
actual malice or filling a cup with evidence of malice. 9
The Court may say in one case, actual bias or ill will 10
standing alone, that one brick, may not be enough to 11
establish actual malice, but when you have that brick and 12
you have purposeful avoidance of the truth, and you have 13
evidence of a preconceived narrative, and you have the 14
purposeful avoidance of information that contradicts that 15
preconceived story line that each of those bricks when 16
assembled, are high enough to demonstrate that you've met 17
your threshold showing of actual malice, and that's 18
exactly the circumstance that we found ourselves here 19
today. 20
The types of circumstantial evidence that 21
Courts have said can be considered are effectively the 22
six buckets. A preconceived narrative or a plan to 23
meline the defendants. The jury could find, a reasonable 24
juror could find that if you set out to find a certain 25
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37
fact or a certain conclusion, that's confirmation bias 1
has infected the investigation. If you're able to 2
demonstrate that with reasonable inferences from the 3
evidence, an investigator –- it applies equally if it's a 4
reporter or an investigator -– it says this is the thesis 5
of my article. 6
THE COURT: Let me ask you something. So from 7
your perspective, does that mean that if I'm conducting 8
an investigation and I interview 100 people, 95 of those 9
say A, five of those say B, and I concluded that A 10
happened, I'm liable for liable because the other five 11
said B and I didn't credit those five? 12
MR. CLARE: That is one element that if the 13
five people that provided a contrary view were not 14
appropriately considered, were not factored into the -- 15
THE COURT: I considered them, I just didn't 16
believe what they had to say. I conclude along the lines 17
of what the other 95 told me, or the opposite way. I 18
interview 100 people, 5 of them I deemed credible, the 19
other 95 I couldn't credit them as far as I could toss 20
them, and I write a report agreeing with the five that I 21
found credible. Would I be liable for liable? 22
MR. CLARE: It's not a mathematical exercise. 23
THE COURT: I know, but I'm asking you to 24
answer my question. 25
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38
MR. CLARE: So under the facts, either of the 1
scenarios that Your Honor has put forward, under either 2
of them, if there has been a purposeful avoidance of the 3
minority view or the majority view even, where it says 4
this does not fit. 5
THE COURT: But is the purposeful avoidance the 6
same thing as not crediting? 7
MR. CLARE: No, it's not, it's not. Purposeful 8
avoidance means not giving the same weight to evidence 9
that doesn't support the thesis. So for example -- 10
THE COURT: If I don't credit it, what weight 11
do I give it? You give it a weight based on how credible 12
you find it to be. 13
MR. CLARE: It's a fact specific question. I 14
don't mean to dodge the question. 15
THE COURT: So am I liable for liable? 16
MR. CLARE: You could be liable for liable if 17
under that fact, the reason for your not crediting the 18
evidence that doesn't fit, if the reason you're not 19
providing the credit is one that is supported by other 20
facts and other information, and is a reasonable judgment 21
to make, then perhaps that cuts against the actual 22
finding of malice. However, if your reason for not 23
crediting the contrary viewpoint has more to do with the 24
objective that you set out to achieve, or other reasons, 25
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39
or a method of logical failure in the way that you've 1
chosen to do your investigation, under those facts, it 2
could very well be a purposeful avoidance of the truth. 3
This dialog that we're having, I think is very 4
instructive because it is -– jurors are allowed to, it's 5
the province of the jury in order to make those sorts of 6
fact specific inquiries. Under the particular facts, 7
whether the decision not to credit the minority view or 8
the majority view, that was difference from what you 9
concluded -- 10
THE COURT: Right, but at this stage, the 11
inquiry that I have to make relates to as a matter of 12
law, not in terms of credibility determinations, correct? 13
MR. CLARE: That's correct, and as a matter of 14
law, what you would have to determine is that in the 15
aggregate of all of the circumstantial evidence, no 16
reasonable juror could conclude that there is actual 17
malice, given all of these things. And so you don't just 18
look at purposeful avoidance in a vacuum, you look at all 19
of the other factors and say, could a juror conclude 20
reasonably that they had reckless disregard for the 21
truth. So a juror may not be persuaded by the 22
preconceived narrative aspect of it, but you say no, I do 23
think that they started with a confirmation bias in the 24
way that they approached this. Then you look at their 25
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40
failure to retract, and you look at some of the other 1
factors that are considered by the Court, and a juror 2
could say in the aggregate, these factors lead me to 3
believe that they have reckless disregard for the truth, 4
in an objective way. And this is way there really isn't 5
anything magic about this actual knowledge standard, just 6
like an intent case, a battery case, where you're proving 7
the intent of the defendant through his or her 8
circumstantial actions before, during and after the 9
actual event. 10
So a juror could conclude, based on the 11
aggregate of evidence that we've assembled, that they 12
acted with actual malice, and you can't just isolate 13
these particular factors. For example, the affidavits 14
and other materials, Ms. Forrest will get into this in 15
much more detail, but where people said who were being 16
interviewed, I told the investigators point X, point Y, 17
point Z, and that information doesn't even make its way 18
into the investigative file. It doesn't make its way 19
into the interview notes, it is being rejected -- 20
THE COURT: Isn't it the province of an 21
investigator to determine what they're going to include 22
in a report after they've conducted an investigation, and 23
not have to say each and every nuance that comes up 24
during the course of an investigation involving 200 25
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41
interviews and hundreds of pages of documents? 1
MR. CLARE: Certainly, but of course they're 2
under no obligation to report an encyclopedia recitation 3
of all of them, but when things that are said by 4
witnesses and who are being interviewed, do not even make 5
their way into interview notes, for example, where that 6
perspective was not considered, or not reflected even in 7
the deliberation process that you've described, or 8
deciding the weak and the trap. A juror could conclude 9
from that and say, yeah, we have witnesses that said, we 10
told investigators all of these things, and there was no 11
follow-up on that particular point, or it wasn't 12
considered, or it wasn't even considered and then 13
rejected in a summary way, and that's the evidence that 14
we have here. 15
A juror could move from that, combined with all 16
of the factors that actual malice is established. 17
Deliberately avoiding sources or information that you 18
know will run a contrary view, fits into that mold. You 19
asked about crediting sources and so I want to be 20
responsive to that. The Supreme Court has said 21
repeatedly that in factoring in whether or not crediting 22
a particular source is reasonable, or could be evidence 23
of actual malice, is if there are reasons that doubt what 24
those 95 people are saying that are known to the 25
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42
investigators. If you have objective reasons where you 1
should be questioning, is this the point of view that is 2
being expressed reasonable, or is it not, that, that 3
could be evidence of actual malice as well. And that's 4
another way where if you're doubting, if you have reasons 5
to doubt, but you don't doubt, that can persuade a juror 6
that you have that confirmation virus. 7
Bias and ill will, obviously there are cases 8
that say standing alone, that is not sufficient to 9
demonstrate actual malice, and I agree with that, it 10
isn't, but if there is evidence of bias in the process or 11
a flawed investigative process where there's a 12
methodological failure in the way that you go about doing 13
it. That may be deliberate, it may be reckless, it may 14
be negligence, but the point is, that it is a factual 15
determination for a juror to make in deciding that, just 16
as a juror would decide any other culpable state of mind. 17
The departure from accepted standards of 18
professional conduct where for example, just taking it 19
out of this context in a media setting, where a reporter 20
does something that is gross violation of the 21
journalistic standard in the way a reporter would do 22
their job, that's evidence that a jury is entitled to 23
consider. And so in this setting, when you've got 24
improper investigation conduct, or conflicts of interest, 25
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43
or things that are extreme departures from what you would 1
establish, or what we could argue to be an extreme 2
departure, a jury is entitled to consider that in 3
reaching that evidence. So unless the Court has any 4
other questions, I'm going to pass to Ms. Forrest who 5
will address some of the evidence that fits those 6
buckets. 7
THE COURT: Thank you, Mr. Clare. 8
MS. FORREST: Good morning, Your Honor, I'm 9
going to try to just hit some of the highlights. I 10
assume you've read the papers, obviously if you have any 11
questions, or if I talk too fast, you'll stop me. We've 12
never had a problem with stopping before. 13
THE COURT: It's a bad habit I have. 14
MS. FORREST: You engage, that's what I care 15
more about. A couple of key issues at the beginning that 16
I think are important. First of all, you heard Mr. 17
Hentoff talk about CIA psychologists, very important 18
here. Pages 9 through 12 focus on the key conclusions in 19
this report, and page 9 -- 20
THE COURT: Of which document? 21
MS. FORREST: Of the report, my apologies. 22
THE COURT: Report, okay. 23
MS. FORREST: Page 9, which we quote on page 26 24
of our opposition. Very particularly lay out what was 25
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44
said, pages 9 through 12 says that APA and DOD colluded 1
to allow policies to be put in place on behalf of the DOD 2
that allowed for stress positions and sleep deprivation. 3
I have pages 9 through 12 here if Your Honor would like a 4
copy of those from the report, if you'd like to refer to 5
them while I talk, if that's helpful. 6
THE COURT: No, that's okay. 7
MS. FORREST: Okay. The Sidley document 8
actually says we don't quote directly from those language 9
in their document, we do. We also quote from those 10
statements in Exhibit A, and we give evidence with 11
respect to each of the 219 statements that was in 12
Sidley's and APA's possession at the time they made the 13
statements, that showed they had evidence that was false. 14
The key issue, Your Honor, in Mann for example, they have 15
four Government reports that contradicted its 16
conclusions. And at that point, the D. C. Court of 17
Appeals says, you can make all these credibility or 18
arguments about the report didn't say enough, or it 19
didn't do this, or it didn't do that, which is 20
essentially in their briefs, our position of what they're 21
doing, that they are making credibility or factual 22
arguments about the reports. 23
THE COURT: Just so we're clear, when you're 24
talking about a statement, are you talking about the 25
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45
summary of an interview, or are you talking about a 1
specific assertion? 2
MS. FORREST: I'm talking about the 219 3
statements we're suing on in Exhibit A, Your Honor. 4
THE COURT: I understand that, but so these are 5
individual specific assertions, because that's what I saw 6
in your exhibit? 7
MS. FORREST: That's correct, Your Honor. 8
THE COURT: Okay, please proceed. 9
MS. FORREST: So start there. Secondly, 10
another key point, the defendant's filed their motion for 11
arbitration at the same time they filed their motion for 12
Slap Statutes. If they wanted to make the argument that 13
just didn't pertain to all the plaintiffs, they should 14
have made it in their Slap motion, because in paragraph 6 15
of our complaint, we allege this is a joint venture and 16
each of the plaintiffs was named as a key player in a 17
joint venture. So for example, page 393 of the Hoffman 18
Report says this wasn't just a partnership between banks 19
and banking, no. This in fact was a partnership, a joint 20
enterprise, page 393, between APA and the DOD, Your 21
Honor. 22
THE COURT: I'm sorry, are Mr. Newman and Mr. 23
Behnke still parties to this litigation? 24
MS. FORREST: They're not parties to the 25
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46
litigation, but they are part of -- the reason it becomes 1
relevant, is we've sued on the basis of the joint venture 2
between the entities. 3
THE COURT: I understand that, I just -- 4
MS. FORREST: And so APA is still party to the 5
document. 6
THE COURT: I just don't see the relevance of 7
the request to proceed without rotation against those two 8
former plaintiffs to this conversation. 9
MS. FORREST: My point is that if they wanted 10
to allege it was an other than concerning, they should 11
have filed it in their original Slap motion, they didn't 12
do that. They're trying to in this motion, say it's not 13
oven concerning because it's about a certain plaintiff, 14
and my point is, when you make one statement because it's 15
about a joint enterprise or a joint venture, it's about 16
all the plaintiffs, regardless of who they work for. 17
THE COURT: But there's a difference between 18
what the report says and who are the parties to this 19
litigation, right? 20
MS. FORREST: Right. 21
THE COURT: There's a whole bunch of people 22
mentioned in that report who are not party to this 23
litigation. 24
MS. FORREST: We've got five, well set aside 25
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47
parties of litigation of where it started versus now, 1
five of the twelve key players of the joint venture. I 2
actually have an affidavit too from an additional member 3
of the key players of the joint venture who have had 4
conversations with APA and Mr. Hentoff over the last year 5
or two years, about their statements to them about what 6
the report said or did not say, including a few weeks ago 7
after we filed our motion or our opposition. So go back 8
to that a minute, but it's oven concerning because it's 9
about the joint venture. Happy to list all of those 10
references for you, it's about the entity and the 11
partnership between the two entities, not just the 12
individuals. You look puzzled, Your Honor. 13
THE COURT: You may continue. 14
MS. FORREST: Okay, thank you. Direct 15
evidence, circumstantial evidence. Exhibit A we've 16
talked about briefly. Exhibit B, Board members from APA, 17
summary chart here, key minutes, documents that show 18
people in attendance participated in the events which 19
were summarized by Sidley. Number one, why weren't they 20
recused? The recusal standard was, did you participate 21
in any of the events. Part of our allegation is they 22
weren't recused, so Doctor Caslow could blame a small 23
under belly, to use her comments, were entitled to the 24
inference that they were there, but I also have in Mr. 25
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48
Cucher's affidavit, two things. One is not only were we 1
all there, not only did we all understand this -- 2
THE COURT: Have you provided opposing counsel 3
with those affidavits? 4
MS. FORREST: I will do so shortly at the end 5
of the hearing, Your Honor. 6
THE COURT: Why aren't you doing so now, how 7
can I consider it when you haven't provided it to them 8
prior to this argument? 9
MS. FORREST: I'm happy to do it when I get to 10
that part of the argument, Your Honor, I brought copies. 11
THE COURT: I'm sorry, you're not going to 12
blind-sight anybody here. 13
MS. FORREST: Not trying to blind-sight, Your 14
Honor, it's a new argument that was admitted and so my 15
understanding is, it was an evidentiary hearing and I've 16
got copies for everybody, not blind-sighting anybody. 17
THE COURT: I believe you misunderstood. You 18
may continue Ms. Forrest. 19
MS. FORREST: Okay. Senate Armed Services 20
Committee Report, the Slushinger Report, the Martinez-21
Lopez Report, a book by Jack Goldsmith, former Assistant 22
Attorney General, Office of Legal Counsel withdrew 23
various memos. The Inspector General Report that Colonel 24
Banks was part of, discussed in response to Hoffman, 13 25
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49
Government reports all in Hoffman and APA's possession. 1
It didn't just put the plaintiffs in a different light, 2
they found no collusion. They found no reason, ethics 3
complaints filed in Ohio, Guam, Louisiana, no reason to 4
censor anybody, Your Honor. Omits key pieces of 5
information. Withdrawal of Bush administration guidance 6
defining torture. Got the timeline here, you've got not 7
just one document. Sidley tries to portray that as one 8
document in the Slushinger Report. Not only is it not 9
one document, it's two years of history. 10
I lived in D. C. during 2005 when these events 11
played out, this was on C-Span every day, they just 12
omitted. Vice Admiral Church, Senator McCain, March 13
2005, policies in place that prohibited abuses, I'm very 14
clear about that. 2014 APA statements about the timeline 15
of the withdrawal. Committee on legal issues, a 16
memorandum from Milstein which says critics have their 17
timeline wrong. These policies were withdrawn. Internal 18
documents also make reference to the Office of 19
Professional Responsibility Report. That report, David 20
Ogdon, who is at Wilmer, Hale, who is APA's previous 21
lawyer, was over that report when he was at the Bush 22
administration. 23
We're going to talk about this in a minute when 24
I talk about retractions, but Mr. Ogden then admits to a 25
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Board member, Mr. Anton, Doctor Anton, that in fact the 1
policies that exited at the time didn't allow what Mr. 2
Hoffman says they did. Interrogation, Standard Operating 3
Procedures, four to Five times in place. I've got the 4
policy here that they they're now playing with an 5
Interrogation Policy, it wasn't. First of all, it wasn't 6
existing which page 9 of the report says it was an 7
existing. 8
It was a draft book chapter, it even refers to 9
itself as a pamphlet. Happy to provide the Court with a 10
copy, if you'd like to see it. It wasn't existing until 11
2006, it wasn't an interrogation policy, Your Honor, it's 12
a training policy. How do you train psychologists who 13
are doing national security work to do that work. Hans 14
Lisner, five times, Larry James, Doctor James, who'd been 15
sent to ALBI Grade, who in his book talks about policies 16
he drafted and the specific policies that should be 17
prohibited, the specific behaviors that should be 18
prohibited, five times. Doctor James goes into the 19
interview, picks up Ursula Teepee and Mr. Hoffman at the 20
airport and says their policies are in place, this is all 21
done, says that on the Pens Listener. 22
Mr. Hoffman quotes portions of that and then 23
leaves out the exculpatory information. Key language, 24
Penn Statement four, they say in their papers, no, that 25
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51
only says follow the law. Look at statement four, what 1
does statement four say? It says you will go follow the 2
local policies, that's paraphrasing, they recently 3
changed in Iraq, Afghanistan, and Guantanamo. You have a 4
responsibility to know those and follow those, very 5
important. Annotated Penn's Guidelines, Jean Reareo, 6
tape from her time at Penn's, says they wanted a standard 7
operating procedure. Remember, Colonel James goes to 8
ALBI Grade, he says there's policies in place, those 9
policies get incorporated in statement for appends. He 10
picks LaTifi and Hoffman up at the airport, says there's 11
policies in place. He's not the only one that say there's 12
no evidence of anybody telling him. 13
Jennifer Bryson interview notes, interrogator 14
at Guantanamo, this is all changed, this wasn't what was 15
going on at that time. Paragraph six of her affidavit, 16
paragraph six of Colonel James' affidavit, all evidence, 17
he knew this, he excludes it intentionally. Statement 18
two, Wolfe e-mails, Wolfe letter, this was all an open 19
process. Everything was projected on the screens, no 20
collusion, no backdoor meetings. You heard Mr. Hentoff 21
disagree with Ms. Wahl's interpretation of what was 22
actually discussed. The epic complains again about 23
Colonel James. The epic complaints were supposedly 24
decided or handled in a way that would not censor 25
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National Security Psychologist. Lots of evidence that 1
that's not what was decided or what was told to the APA 2
Board. Doctor Caslow makes a statement, this was fully 3
investigated. Jennifer Kelly, another Board member, 4
fully investigated. 5
Those statements are still on the APA website. 6
Exhibit B, we've talked about that briefly, but APA's 7
responses fall into four general categories. Did not 8
involve the plaintiffs, paragraph six, we've talked about 9
that, evidence of a joint venture and joint enterprise. 10
We're entitled to all reasonable inferences, they didn't 11
move on that in their original motion that it wasn't 12
concerning, and they could have. No proof a Board member 13
was at the event, even if listed in the minutes as 14
attending, were entitled to that reasonable inference. 15
Again, it doesn't have to be the inference, Your Honor, 16
it only needs to be a reasonable inference. You can't 17
show any of them knew. 18
If you put out a statement about something 19
being fully investigated, I can show that you knew, but 20
if they were there and they put out different statements, 21
and they were involved in it, it's a reasonable 22
inference, Your Honor, to conclude that they understood 23
what they were doing at the time. No proof that when 24
they published, they realized or remembered that they 25
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53
were involved. Again, all reasonable inferences in our 1
favor. That's the direct evidence. Circumstantial 2
evidence, 20 affidavits of 34. Sammons, Bow, Bryson, 3
Callahan, Sorbonne, Deutch, Fine, Hensherf, Maderazo, 4
Maderazo, II, because his son who is a lawyer was there 5
as well during the interview. Shummy, Swenson, Headily, 6
LaFever, Newman, Banks, James, Donovan and Behnke. 7
THE COURT: So 20 affidavits and five of those 8
have been plaintiffs in this case. 9
MS. FORREST: Yes. 10
THE COURT: Okay, please proceed. 11
MS. FORREST: But not self-serving, Your Honor, 12
there's a great new case out of California, it was just 13
decided a few weeks ago that says when you have an 14
affidavit on a Slap, you're entitled to all reasonable 15
inferences. And even if it's a plaintiff, that overcomes 16
a Slap motion. In that case, they had one. Let me talk 17
a minute about purposeful avoidance. Great case, Jackson 18
City v. Columbus, one of my favorite. In that case, they 19
showed 946 pages of look at how thorough this is. There 20
was a problem. They didn't ask the main witness whether 21
he'd had a vasectomy, and the allegation in the report 22
was that he impregnated somebody. So you can have all 23
the interviews you want, you can introduce all the 24
evidence you want. 25
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THE COURT: I'm sorry I disrupted you, you were 1
talking about the 20 affidavits? 2
MS. FORREST: Right, I'm now onto other 3
affidavits about how thorough. So the 20 affidavits it 4
about purposeful avoidance, and so Lieutenant Colonel 5
Donovan, and we're going to get to people's ranks in a 6
minute because they've still have them wrong today. 7
Lieutenant Colonel Donovan, five times says I need 8
clearance, I need you to give me the questions so I can 9
talk about the policies. No, no, I'm not going to talk 10
about that. Talks about an outdated policy in 2003 with 11
her extensively though. We've provided those e-mails to 12
the Court. Things that were omitted, purposeful 13
avoidance, Your Honor, and it's ironic because Mr. 14
Hoffman on page 67 of his report talks about a delivered 15
avoidance or an Ostridge of instruction, because the goal 16
was to take this joint enterprise, I think Your Honor's 17
done work with the Hague with children's work. The Hague 18
pioneered in Yugoslavia, the use of the Joint Enterprise 19
concept and in crimes. 20
So that was the key, that was the goal, and in 21
fact, James Risen had talked to people who were with the 22
ICC, that was the goal to get this back to the ICC, or to 23
get a civil complaint. That's what we allege was the 24
reason for using those terms. Information omitted from 25
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55
interviews, this isn't about trying to place you in a 1
different light, it directly contradicts what he said. 2
So we're entitled to an inference that you distorted or 3
omitted the policy because you knew it was false. That's 4
Mann, several times, and that's Nader v. D. Torodito. 5
Both of those cases deal with Government reports where 6
you cite portions of it and you omit others. The D. C. 7
Court of Appeals says both times, you're entitled to the 8
reasonable inference that you knew, and that's actual 9
malice. 10
Omitted evidence, Banks, Bow, Sorbonne, 11
Donovan, Fine, LeFever, Levant, Newman, Williams. 12
Williams is particularly interesting, we got the 13
interviews, you gave us 18 interview notes. Williams' 14
interview notes, basically four sentences, Your Honor, 15
half of that gets redacted as work product, the half that 16
we see, page 294 on the report, let me double check that 17
reference in a minute, my apologies, let me double check 18
that. It cites the right date in the report. It says 19
Colonel Williams, who was one of the first people into 20
Iraq, they never asked Colonel Williams anything about 21
the policies, number one, not in the interview. They say 22
in the report, we wanted Colonel James because he'd been 23
to ALBI Grade and helped clean things up. 24
It's not in the interview notes. Don't know 25
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where that came from, that's actually helpful to us, but 1
again, the interview notes don't even support what's said 2
in the report at times. We've talked about the interview 3
with Doctor Donovan, plaintiff Behnke says go interview 4
Lieutenant General Eric Schoolmaker, he'll tell you he 5
deployed us. Wanted to be able to get affidavits of all 6
the military people, we're not allowed by DOD to do that. 7
Bryson told him what the policies were. Lieutenant 8
General Hood, Lieutenant General Abbasid, Dan Leven, Eric 9
Schoolmaker, will all testify and add to what plaintiffs 10
have briefed in terms of what the policies were, when 11
they were, what the prohibited. 12
The key issue there, and Jennifer Bryson 13
alludes to this in her, not alludes to it, she says in 14
the affidavit, the key issue is, Your Honor, Geneva and 15
the Uniform Code of Military Justice applied. The minute 16
you apply those, sleep deprivation and stress positions 17
go out the window. As of late 2003, that happened, and I 18
can walk Your Honor through that timeline, but there were 19
specifically prohibited by order in May of 2004 when it 20
talked about retractions in the minutes, but the first 21
thing I present to them, and David Ogdon, who again had 22
reviewed all of this for the Obama administration, who 23
used to be APA's lawyer, I go through all of that 24
evidence and the various policies, it's all there. It 25
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wasn't even a close call. It had been changed a year 1
earlier. So they say no, it was just the Slushinger 2
Report, one document. This was almost two years of 3
documents that show the policies were withdrawn in their 4
possession, in their possession. 5
THE COURT: Are you saying you're a witness in 6
this case? 7
MS. FORREST: I'm sorry? 8
THE COURT: Are you saying that you're a 9
witness in this case? 10
MS. FORREST: No, I'm not saying I'm the 11
witness, but we're going to be retraction, what they had 12
in their possession. Retraction under the restatement, 13
failure to retract, is key evidence of actual malice. So 14
at the point they're given various things along the way 15
and they refuse to retract, that becomes an issue and I 16
can point to documents about that. I'm not saying I'm a 17
witness, but what I am saying is evidence in their 18
possession along the way, the explanation about the 19
policies has changed multiple times, and that I point to 20
public documents, not to my testimony. David Ogdon, 21
state to Barry Anton, yes the existing policies 22
prohibited these things essentially. I'm paraphrasing. 23
Plenty of external evidence, I don't have to testify to 24
that. 25
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Bias against them, Sidley had actually sued or 1
gone after James Risen before because of the sources. 2
Sidley had hoped to establish in the D. C. Circuit, the 3
standards for getting witnesses and sources from a 4
reporter. They knew James Risen was biased, they knew 5
the critics were biased against our clients. APA Board 6
members had refuted those allegations for years. Again, 7
we don't think it has to be just B inference, it's an 8
inference, we believe that most of this, especially with 9
the APA brief, are all factual issues. Happy to move 10
briefly to the first prong of the Anti-Slap and public 11
official. 12
THE COURT: Okay. 13
MS. FORREST: Which one would you like to hear 14
first? 15
THE COURT: You may decide where you want to 16
go.. 17
MS. FORREST: Okay, page 6, first motion of 18
Sidley. Sidley is the only one to deal with the public 19
official argument. Page 6, page 12, 13 of the original 20
motion, Your Honor. They say that all these folks were 21
lieutenant colonels. We go into mediation, they find out 22
that's wrong, so here in their papers, they say we 23
concede that everybody is a colonel. That's not accurate 24
either. Their own report details in several places, 25
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Doctor Donovan was a lieutenant colonel. Each of them 1
were consultants to commanders at the time. They were 2
put on special assignment by various people. I'm going 3
to leave you to the briefs on the temporal element. The 4
key issue, even in Rosenblatt v. Bear, is whether they 5
had substantial responsibility. So Sidley concedes for 6
us that in fact, they have the burden. What evidence 7
have they introduced? Turn to portions of the complaint, 8
paragraphs 39, 41, 42, they ran reference page 36. 9
Paragraphs 122, 123, and I have copies of these, Your 10
Honor, if you'd like to see them while I'm talking. 11
THE COURT: I have everything. 12
MS. FORREST: 124, 125, 126, 127, 128, 129 and 13
190. They omit two key paragraphs, 221 and 222. All of 14
those, and I'd like to read those for the Court. All of 15
the military plaintiffs were mid-level DOD personnel with 16
no ability to commit the DOD to policy positions, to 17
speak for it, or to give pre-clearance on its behalf. 18
Banks, the senior leader to whom Hoffman refers, could 19
have easily been accurately described as an informal 20
liaison between the APA and one of its important 21
constituents military psychologists. He could not speak 22
for the constituency of course, without taking into 23
account military protocols and preferences. We also cite 24
to Lieutenant General Kiley and former Army Sargent 25
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General Eric Schoolmaker, each of whom will testify that 1
they had no ability to make policy. Saying somebody took 2
a policy that a General made and wrote what we call a SOP 3
or Standing Operating Procedure, doesn't mean you created 4
policy in the vein of Rosenblatt v. Bear. Every case 5
Sidley cites, the person involved had greater substantial 6
policy making decisions, so they set the policy and the 7
reason they have to decide, they're subject to actual 8
malice, is because they assume the risk when you're that 9
high that people are going to talk about your position. 10
Our folks didn't make policy, they were sent by the 11
Government to clean things up after the policies were 12
changed. Let me move briefly then to the first prong, 13
the Anti-Slap unless Your Honor has any additional 14
questions on my matter. 15
THE COURT: Proceed. 16
MS. FORREST: I am prepared to argue, Your 17
Honor, and I would refer you, you asked Mr. Hentoff if he 18
was prepared to argue the negligence issue. I would 19
refer the Court to Pierce v. E. F. Hutton, 664 F.Supp. 20
1490, Your Honor, and my apologies, that was reversed 21
later on in an arbitration issue, not on this issue. 22
That report quotes Rodney Smallness, law of defamation, 23
Treaties 3.283, Your Honor, is the reference. It gives 24
eight criteria in an independent investigation of which 25
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would constitute actual malice. Failure to pursue an 1
investigation, I believe we've made that in our papers. 2
Unreasonable reliance on sources, certainly the 3
Government's created that in the papers. Unreasonable 4
formulation of conclusions, inferences or interpretation, 5
why were you using criminal language when you tell your 6
client about that interview of and Nadine Caslow. He 7
found no criminal activity, but we're still talking about 8
referring it to the FBI. Misuse of legal terminology, 9
Joint Enterprise was not appropriate, no collusion, he 10
admits that in an interview after the fact that he found 11
no collusion. 12
It would have been better to use words like 13
secret collaboration. Mechanical or typographical 14
errors, I can list those. Unreasonable screening or 15
checking procedures, once you investigate, and you find 16
evidence that creates an issue, you have a duty to 17
investigate, that's clear. Houlihan, we cite that in our 18
papers. Failure to follow established internal practices 19
and policies, we've shown that even by his own partner's 20
standards, this is a problem. I'm going to move to first 21
prong, and I've got copies of this if it's helpful, but 22
you don't seem in the mood for exhibits, so I'll hold. 23
THE COURT: I have everything that you filed. 24
MS. FORREST: Yes, it's filed, but I thought it 25
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might be helpful while I'm making the argument to be able 1
to look at it. So these are the various 13 counts. With 2
their filing of the supplemental motion, they concede 3
it's a count-by-count, claim-by-claim motion. Number 4
one, Hoffman and Sidley to APA Board of Directors, 5
including Special Committee. We know from APA's 6
interrogatory answers, that was a private communication 7
up on Sidley's server, that wasn't a public forum. 8
Again, referencing the language of the statute about 9
what's a public forum in a place open to the public or a 10
public forum, any other expressive, or expressive conduct 11
expressing views to members of the public in connection 12
with this date. Sidley's first motion, pages 9 through 13
10. Sidley and APA contemplated that APA would make the 14
report public, and APA posted the report on its website 15
in 2015. Sidley contemplated, that's not inept, it's not 16
inept of its course of conduct, it's not a written oral 17
statement. 18
We've alleged in paragraph one that they 19
published it. We know from APA's interrogatory answers 20
that they did publish it. Two and three, Boards of Riser 21
and Shultz, again, not a public communication. And the 22
case law from California is illustrative on this, 23
although it's important to note that the California 24
statute is substantially different. Here is, we talk 25
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about in our motion, the California statute uses the 1
terms free speech. It was amended in 1997, Your Honor, 2
to include very broadly, and the legislature said very 3
broad, and remember the legislature in California can 4
make procedural law. 5
So the California legislature says, we want 6
free speech protected. ACLU comes in, page 4 of the 7
legislative history, free speech is too broad. You need 8
to change the term to an act of advocacy. We want the 9
male meaning given to the bill, Legislative History, page 10
4. Again, each of these publications, private. Final 11
Hoffman report, Hoffman and Sidley to the Board Special 12
Committee, that's not a place where you can exchange 13
views. 14
So in California, you actually have a stat 15
right now among Appellate Courts that says a newspaper 16
isn't even a public forum, because you can't have a 17
debate. The newspaper controls the content. APA comes 18
in, in a brief and says Damon the Ocean Hills, if it's a 19
homeowner's association, that works. The problem with 20
that is, is in California, we have a Code of Regulations, 21
I live in a hi-rise in California, when we have our Board 22
meetings, they have to be broadcasted all over the city 23
because their a life of Governmental entity in 24
California, and the decisions they rely on make that 25
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distinction. 1
Count five Wood and Special Committee to APA 2
Council, credit communication. Six, New York Times to 3
it's website. Now, that's an interesting because one of 4
their arguments is they say, the publication's on the way 5
to the final publication in the reply. Originally, APA, 6
pages 7 and 8, they claim for count seven, publication of 7
the report in 2017. They deny a republication occurred, 8
so I'm not quite certain how you deny a republication and 9
then claim protection for it. So there's no Act under 10
the statute. You certainly didn't claim, as you should 11
in your motion, let's assume they're argument's right, 12
that you get the acts along the way, you should have 13
claimed them in your motion, that's your prima facie 14
case. That's not hard to make, you say we published all 15
these things along the way and this is what happened, so 16
we want protection for all of them, but they never 17
claimed that protection. 18
Number eight, Hasslow videos, audio tapes, they 19
never deal with it at all. They never claim protection 20
for that. Count nine, Hoffman and Sidley to the Special 21
Committee and Board again, a second time, private 22
communication. Ten, revised Hoffman Report, Board and 23
Special Committee on the APA website. Again, they talked 24
today about that, we did a retraction. Well that was at 25
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the time we were in talking to them about all the 1
problems in the report and they continued to exclude it. 2
We've given them clear evidence, that's Mann, that the 3
report's wrong, they do nothing with it. Count eleven, 4
again the APA to AT website, they dispute they published 5
it at all. If I may sum up, talked a lot, thank you for 6
listening. 7
THE COURT: That's okay. 8
MS. FRAZIER: We believe reasonable inferences 9
based on Nader v. D. Torodito and Mann. APA's publishing 10
of the report in spite of their extreme and clearly 11
demonstrated involvement and cognizant of contrary 12
statements that make data conclusions in the report for 13
over a decade supports a reasonable inference not B, not 14
the only, they can argue all they want that our inference 15
is wrong, but that's a jury argument, supports an 16
inference that the Special Committee and the Board 17
published the report with knowledge of falsity. 18
For Mr. Hoffman and Sidley, quoting portions of 19
the report with explicit unambiguous findings of no 20
collusion the wrong interrogations techniques. The 21
description of interrogations techniques that were 22
withdrawn is consistent with the inference that Hoffman 23
falsified, distorted and omitted evidence from the report 24
purposefully. Such that the Court could find that he 25
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acted with conscious disregard or direct knowledge of 1
falsity. 2
If you have a reason to suspect falsity and 3
come upon contrary evidence, you have a duty to 4
investigate that. Houlihan v. Worldwide Association 5
Specialty Programs, Tavalerus, I always say that wrong, 6
on the second or third remand, ill will evidence of bad 7
faith, Mann evidence of bad faith, the Supreme Court 8
purposeful avoidance, hard hanks, my colleague, Mr. Clare 9
was able to go through all of that adeptly. I appreciate 10
your patience. Mr. Oliveri will just briefly, I promise 11
briefly address choice of law for you and publication. 12
Thank you. 13
THE COURT: Thank you, Ms. Forrest. 14
MR. OLIVERI: Thank you, Your Honor, I'll be 15
incredibly brief. I know we've been going for a while 16
now. My name is Joe Oliveri, from Clear Loft. I'd like 17
to start with the issues of republication and touch on a 18
couple of issues that Mr. Hentoff spoke about in his 19
argument. First and foremost, the starting point for the 20
republication analysis, is that because the question of 21
publication and the question of republication is 22
ultimately a factual question that a jury resolves, at 23
this threshold stage, it's the defendant's burden to 24
prove that there was no republication as a matter of law. 25
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So what is the standard? That is the standard that we're 1
looking at. The question of republication, what 2
constitutes republication? The Supreme Court has held 3
that even when the same defamatory communication is 4
communicated to people on separate occasions like a 5
morning and evening edition of the newspaper, each of 6
those are separate publications as a matter of law, 7
capable of giving rise to separate causes of action. 8
Here, what we have is the Hoffman Report, originally 9
published at a URL in 2015. 10
In 2018, this URL was added to the timeline, or 11
was put onto the timeline page. At the same time, 12
actually I think I misspoke. The URL was also on this 13
APA timeline page. In 2018, related materials are added 14
alongside that URL. Case law has held, and it's in both 15
parties' briefs, that when substantive material is added 16
to a website, and that material is related to defamatory 17
material that's already on the website, if republication 18
has occurred. The reason being, the new material is 19
drawing a new audience to the defamatory statement, it's 20
reiterating it, it's adding context to that already 21
posted defamatory material. 22
THE COURT: Does that apply if the added 23
material consists of criticisms of that report? 24
MR. OLIVERI: It does, Your Honor, let me 25
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explain why. That may seem a little bit antithetical, 1
however what we see here and in the case law, comments on 2
the material, anything is drawing new eyes or capable of 3
drawing new eyes to that material. 4
THE COURT: All right, so wait a second. I go 5
on the Washington Post and I'm a reporter for the 6
Washington Post and I write an article. And you know, 7
there's that comment section where all source of 8
questionable individuals add comments. Every time 9
somebody writes absolute something insane in that comment 10
section, that's a republication? 11
MS. FORREST: No, no, no, I think that's 12
completely different, Your Honor. In that case, if you 13
have other people, it's an open forum, people are adding 14
comments, when you have the authors of the original 15
defamatory material, post-related material on it, in the 16
Larue case that both parties cite, comments were added, 17
not open forum comments like in the Washington Post 18
website, Your Honor, rather comments by the same 19
defendant, that it posted in the original defamatory 20
material. A case that's cited in both parties' brief is 21
actually pretty interesting, that Romo case, which my 22
firm litigated. In that case, the republication that was 23
found by the jury, was a republication that the defendant 24
argued, tried to water down its defamatory material. The 25
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defendant took the position that this republication, the 1
additional statement that was added, was an attempted 2
retraction. It tried to water down comments akin 3
to hear the defendant's taking the position that a lot of 4
the material that they added was critical of the report, 5
was still held to be a republication because that new 6
material was added, it drew more eyes to the defamatory 7
content. 8
Now the defendant's lawyers have argued and 9
have much of the fact that the Hoffman Report on the 10
timeline was not posted there itself, it was a link to 11
the Hoffman report, rather than say I suppose imbedding a 12
scrollable image of the document on the website. D. C. 13
Courts have held that posting a hyperlink to a document, 14
incorporates it in the website as if it were there on the 15
screen for people to view. Courts have said, and I think 16
the analysis, it's the modern day equivalent of turning 17
over a cruise ticket and seeing what's on the backside. 18
People know how hyperlinks work, and now acts to 19
incorporate the document by reference here. Such that 20
hyperlink materials are part and parcel of that document. 21
We see that a lot now with Twitter posts where characters 22
are limited, but people are putting links in that may not 23
themselves even mention the plaintiff, but it's held to 24
incorporate the linked document. 25
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Briefly, the case law that the parties discuss 1
I think there's a lot of case law, and the defendant's 2
brief on this point might actually invite Your Honor to 3
take a close look at that. In looking through it myself, 4
in every case they cite in which a republication of a 5
hyperlink was held not to be a publication. It's because 6
that republication was made without the addition of 7
related materials. The Kline case, the wife designs 8
ranch, the doctors data the first case. It was all 9
either solely republication, or solely reposting, let me 10
not confuse terminology, solely reposting of a hyperlink 11
without any additional information. In the cases where 12
there was related information, the Romo case, the Davis 13
case, the Larue case, courts held that there was in fact 14
a republication as a matter of law. And I think APA had 15
said in its brief, took the position that well the added 16
related materials have to be defamatory themselves in 17
order for it to turn the original posting into a 18
republication, and that's simply not the case. 19
They cited an enigma software group case that 20
just simply didn't make that holding whatsoever, but 21
rather it held in accord with the general rule, that 22
where substantive material was added to a website, and it 23
was related to the defamatory material that was already 24
posted, a republication occurs. Let me turn to Sidley 25
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here, because separate and apart from APA republishing 1
this material, Sidley has taken the position in the 2
papers and in the reply that Sidley cannot be liable, Mr. 3
Hoffman cannot be liable because they did not play an 4
active role in posting or republishing the Hoffman 5
Report, or adding the related materials themselves. 6
Again, that's not what the law is. The law in fact says 7
that the maker of a defamatory statement may be held 8
accountable for its republication, if that republication 9
was reasonably foreseeable, and there is no need to 10
require proof that the defendant knowingly participated 11
in another person's republication, The Tolula-Rias case, 12
Your Honor. Tolula-Rias does not, as the defendants 13
state in their briefing, require the defendant to 14
actually participate in that publication. 15
So the question is really a factual question of 16
what is reasonably foreseeable, and again, because it's a 17
fact question, at this summary judgment standard stage, 18
the question is whether the defendants have offered 19
enough evidence to Your Honor, in your gatekeeping role, 20
to hold that as a matter of law, no jury can possibly 21
reasonably find a republication here. 22
THE COURT: Mr. Oliveri, hold that. This 23
analysis is identical to the motion for summary judgment, 24
or analogous to? 25
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MR. OLIVERI: It's analogous to, Your Honor. I 1
think, I don't have the language in front of me, the Mann 2
Court has referred back to a previous case that said we 3
had never held that it was akin to a summary judgment 4
standard we now self-hold. I think it's akin, but I 5
would refer Your Honor to the specific language of the 6
case that we could certainly pull up for you. In any 7
sense, in any event, it is a gatekeeping function. What 8
is the evidence here, that bears on the question of 9
reasonable foreseeability of republication to Sidley and 10
Hoffman. There's a number of pieces of evidence that we 11
cite in our briefs that the defendants did not address in 12
theirs. There are three public statements by the APA. 13
The APA had stated that it would undertake an 14
aggressive communications program to inform members in 15
the general public of the report's findings. The APA 16
publicly stated that quote, after reviewing the Hoffman 17
Report, the APA Board will make it available to the APA 18
Council of Representatives, APA members, and the public. 19
The APA said quote, it will take actions in response to 20
the report and recommendations as a special committee 21
finds appropriate. I think most telling of all, the 22
engagement letter in which the APA hired Sidley Austin 23
and Mr. Hoffman to undertake the investigation and 24
publish the report, stated quote, we understand, and this 25
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was the engagement letter authored by Sidley Austin, 1
quote, we understand that the Board of Directors of the 2
APA will subsequently make our final report available to 3
the Council of Representatives, APA members, and the 4
public. 5
Simply put, there is certainly sufficient 6
evidence from which a jury could reasonably conclude that 7
the Sidley Austin knew that the APA would be publishing 8
and republishing this report. There is no case law that 9
holds that Sidley would have had to have been -– that it 10
would have been reasonably foreseeable to Sidley that it 11
would be published on a specific occasion in a specific 12
location. The defendants don't cite any case law holding 13
that, because that is not a requirement, it is just 14
reasonable, foreseeability overall. I don't want to 15
belabor that point, so I'd like to briefly touch upon the 16
choice of law question, Your Honor. 17
THE COURT: Can I ask you a question before we 18
move on? 19
MR. OLIVERI: Of course. 20
THE COURT: Are you saying that if there is an 21
issue that amounts to a factual question, that a jury 22
would decide the Anti-Slap Act is inapplicable? 23
MR. OLIVERI: I don't think that's what I was 24
trying to say. What I was saying here is with regard to 25
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the reasonably foreseeability of republication, the 1
question of republication is a fact question, so under 2
the Anti-Slap Act right now, Your Honor is in his 3
threshold role, his gatekeeping function that if there is 4
no evidence that it was reasonably foreseeable, then the 5
motion succeeds and is granted. But if there is a 6
factual question, if we have proffered the plan as 7
proffered sufficient evidence to which a jury could find 8
republication, then the motion should be denied, not that 9
the statute is inapplicable. 10
So just returning to Mann, Your Honor, the 11
language said the applicability of the Anti-Slap statute, 12
all this recognized that at the time this Court has never 13
interpreted the D. C. Anti-Slap Act's likelihood of 14
success standard to simply mirror the standards imposed 15
by Rule 56. We do so now, so it's a mirroring of the 16
standard, just to get back to you on that, so note 32 in 17
there. Now I want to briefly touch upon choice of law. 18
It may seem that at the end of argument about the Anti-19
Slap statute, I'm telling you, Your Honor, that it does 20
not apply. That's exactly what I'm telling you, and let 21
me explain briefly why, if you'll indulge me. The 22
parties agree and Sidley addresses this question in its 23
reply memorandum, the ABA does not, but the parties agree 24
that there is an actual conflict between the Illinois and 25
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D. C. Anti-Slap Acts. 1
The parties agree that the choice of law is 2
analysis is thus necessary, and they agree that D. C. Law 3
provides that where there's an actual conflict of laws, 4
you apply the law of the jurisdiction with the most 5
significant relationship to the dispute who's policy 6
would be more enhanced by applying its law. Parties 7
agree that the four restatement factors are what you look 8
at to determine that question, and the parties agree that 9
the choice of analysis applies to any of these five acts 10
in that Your Honor has fond the act to be substantive for 11
purposes of this case I think composition to the 12
plaintiff's dispute, but in light of Your Honor's ruling 13
for the choice of law analysis that controls. 14
So the two most important factors, the most 15
important factor, the place of the conduct causing the 16
injury favors the Illinois Act. Why? Twelve of the 17
thirteen counts in this case are based on speech that 18
originated with Hoffman and Sidley in Illinois. The 19
counts against the APA simply involve republication or 20
repetition of those defamatory statements in the Hoffman 21
Report. Hoffman's management of the investigation in 22
writing of the report happened in Illinois. How the 23
defendants concede in the reply, that Sidley lawyers 24
authored the report in Illinois because they say that 25
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some of the attorneys in their D. C. office also worked 1
on it, but Hoffman, it's undisputed, was based in 2
Illinois. The defendants concede in their reply that 3
Sidley lawyers authored the report in Illinois. 4
They say that some of the attorneys in their DC 5
office also worked on it. But Hoffman, it's undisputed, 6
was based in Illinois. The interviews conducted as part 7
of this report, parts of this investigation were, 8
occurred around the country, not in DC. The APA's 9
actions took place through phone calls and e-mails with 10
individuals across the country. Again, original 11
publication by Sidley and Hoffman, not the APA, including 12
the evidence cited in the briefing that Sidley may have 13
leaked an advance copy of the report to the media. The 14
parties dispute what this metadata evidence shows. So, 15
again, fact question, but that's also coming from 16
Illinois. 17
The second most important factor, the domicile 18
of the speaker and other parties also favors the 19
application of Illinois law here. Sidley Austin's 20
principal place of business is in Illinois. It's state 21
of organization is Illinois. Mr. Hoffman is domiciled in 22
Illinois and Illinois is the only state in which he is 23
licensed to practice law. And the conduct here in 24
publishing the Hoffman report was taken in his capacity 25
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as a lawyer, as evidenced again through that engagement 1
letter. 2
None of the plaintiffs here are residents of DC 3
and although APA is organized in DC, its board members 4
that were involved in the coordinating the investigation 5
are scattered across the country, not in the District of 6
Columbia. 7
THE COURT: I'm just curious. If you're the 8
plaintiffs and you decide where you're going to file a 9
lawsuit and it is your understanding that all this stuff 10
happened in Illinois, why did you go to Ohio, 11
Massachusetts and the District of Columbia? 12
MR. OLIVERI: Sure. That's a fair question, 13
Your Honor. And this gets into the difference between 14
the inquiries regarding jurisdiction and choice of law, 15
which often times they go hand in glove, but DC, under 16
the doctrine of decoupage (phonetic sp.), you have to 17
look individually at each claim to see the applicable 18
law. Plaintiffs attempted to file this suit, actually, 19
in Ohio, which also had connections. The defendants 20
opposed jurisdiction there and that lawsuit was dismissed 21
for lack of jurisdiction. However, the defendants stated 22
that they would consent and not challenge personal 23
jurisdiction in the District of Columbia. Rather than 24
continuing to fight jurisdictional battles, all the while 25
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the merits are remaining unadjudicated and the 1
plaintiff's damages are accruing, Plaintiff's said fine. 2
You win on jurisdiction. Defendants will file in the 3
District of Columbia. That doesn't, though, change the 4
question of the applicable law. That's a secondary 5
inquiry, separate from jurisdiction. 6
The place where the relationship is centered 7
also factors into the choice of law analysis. And here, 8
that relationship is centered in Illinois. The 9
relationship between the defendants is the key 10
relationship for purposes of this prong because it's the 11
relationship among the defendants here that ultimately 12
led to the plaintiff's injury. In cases like an employee 13
employer injury case or railroad passenger operator, for 14
example, the relationship between plaintiff and the 15
defendant may be a more germane relationship, but here we 16
have an independent tort. Therefore, I think the case 17
all favors looking at the relationships between the 18
parties here. There wasn't necessarily a plaintiff 19
defendant relationship. We're left to look with the 20
relationships among the defendants. And here, I think the 21
most important fact here is the engagement letter, where 22
APA retains Sidley, retained Mr. Hoffman, contained a 23
provision that specifically specified that Illinois law 24
would govern the relationship. It's an incredibly 25
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telling piece of evidence that they, themselves, 1
contemplated that Illinois would govern -- 2
THE COURT: Okay. 3
MR. OLIVERI: -- the result of their work. 4
THE COURT: You weren't here for those 5
hearings. I don't, that makes no difference to me. 6
Because the way that letter reads to me is if there are 7
disputes between the parties to that contract, and the 8
plaintiffs were not parties to that contract. 9
MR. OLIVERI: Understood, Your Honor. I won't 10
belabor that point but I would just push back just a very 11
little bit to say that may be right, Your Honor, but it 12
still shows the thinking and the thoughts between the 13
parties here. But again, I won't belabor that point. 14
The last point I want to make here is the policy 15
question. And that is, the District of Columbia also 16
favors applying the law of the jurisdiction whose 17
policies would be most served or conversely not applying 18
the law of the jurisdiction whose polices would not be 19
upset here. The Illinois act contains an express public 20
policy statement that states, the policy is to strike a 21
balance between the rights of persons to file lawsuits 22
for injuries and the constitutional rights of persons to 23
petition. The Illinois Supreme Court has emphasized that 24
policy. 25
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By contrast, the DC Anti-SLAPP Act has no 1
public policy statement and the DC Court of Appeals in 2
Mann emphasized that the DC act creates an imbalance by 3
significantly advantaging the defendants. Here, in light 4
of that, Illinois's policy of having its own speakers, 5
the defendants here, Illinois residents, Hoffman and 6
Sidley, balance those rights against the rights of 7
putative plaintiffs would be harmed if DC law were to 8
apply. By contrast, DC law, Anti-SLAPP law, does not 9
have a specific public policy statement that would be 10
offended by the application of Illinois law. And I don't 11
want to belabor these points, Your Honor, so I'll leave 12
that at that. I know we've been going for a while. 13
Thank you. 14
THE COURT: Yes, sir. I appreciate it. Thank 15
you. 16
MS. FORREST: Your Honor, can I address three 17
factual issues just real quick that came up? 18
THE COURT: Sure. 19
MS. FORREST: Real quick. Thank you. Your 20
Honor mentioned at the beginning that our papers were 21
rejected. We filed at about noon on that Friday. 22
THE COURT: Nothing to worry about. 23
MS. FORREST: Okay. 24
THE COURT: I was simply explaining why there's 25
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a certain -- 1
MS. FORREST: Great. 2
THE COURT: -- chronology that appears in the 3
court record. 4
MS. FORREST: Thank you. 5
THE COURT: It seems to be -- 6
MS. FORREST: They thought it was the same set 7
of -- 8
THE COURT: -- you know, anti-intuitive. 9
MS. FORREST: -- papers. We were on the phone 10
with them -- 11
THE COURT: Yes. 12
MS. FORREST: -- all afternoon. 13
THE COURT: Yes. 14
MS. FORREST: My apologies. 15
THE COURT: I know. 16
MS. FORREST: Okay. 17
THE COURT: Don't worry about that. 18
MS. FORREST: Thank you. Second issue, I want 19
to correct, and I don't want to get sideways with you. 20
We've been doing so well today. Okay? Chronology 21
because you weren't on the case. 22
THE COURT: Uh-huh. 23
MS. FORREST: We get dismissed in Ohio on a 24
Friday, August 25th. Sidley says if you file in DC, we 25
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won't object to jurisdiction. Otherwise, Supreme Court 1
has come down while we were in Ohio with a major Supreme 2
Court case on jurisdiction. We go, we file. On the same 3
two days before they file the SLAPP motions with Judge 4
Edelman, we never got to see Judge Edelman. We, they 5
file a motion to say we don't want to file a 12(B)(6) or 6
any other preliminary motions. So, they didn't file 7
those preliminary motions. They file the SLAPP motions. 8
Judge Edelman dismisses them a moot because of the stay. 9
So, the situation we're in, which was 10
immediately acknowledged by the judge in Massachusetts, 11
was I had no jurisdiction in Ohio. I filed in, on the 12
following Monday in DC, but I don't know if I have 13
jurisdiction or if they're going to contest it again. DC 14
appeals precedent on point. If you don't know you have 15
jurisdiction certain, you have to file in every available 16
jurisdiction. So, I go up and I file in Massachusetts, 17
and that case has been stayed. That's the secrets in 18
defense. 19
I appreciate Your Honor's point on the 20
affidavits. There's a Court of Appeals case pending 21
right now that was argued, what is the purpose of the 22
hearing. Isn't the purpose of the hearing to tender 23
evidence? Is it not? Do you get to tender new evidence? 24
Do you have to stick with what you filed? I appreciate 25
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the issue of surprise. 1
THE COURT: Well, since when have you had those 2
documents? 3
MS. FORREST: I think they're all this past 4
week. 5
THE COURT: I mean -- 6
MS. FORREST: What I'm happy to do -- 7
THE COURT: -- giving it to opposing counsel in 8
the middle of a hearing -- 9
MS. FORREST: What I'm -- 10
THE COURT: -- when you've had these documents 11
for a while? 12
MS. FORREST: I'm happy to tender it and then 13
they can have a response to it in writing, if they'd 14
like. 15
THE COURT: No. I'm sorry. 16
MS. FORREST: Okay. 17
THE COURT: I'm sorry. 18
MS. FORREST: That's fine. 19
THE COURT: You know, it's like the pleadings 20
were filed, this hearing was set, we've been traveling 21
down this path for a while now. 22
MS. FORREST: Understood. Thank you. 23
THE COURT: Okay? Thank you. What's your 24
response? Who's going to go first, Ms. Wahl or Mr. 25
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Hentoff? 1
MR. HENTOFF: I'd like to go first, Your Honor. 2
THE COURT: Okay. I mean, do you agree or 3
disagree that there was all this evidence that 4
contradicted the conclusions that Mr. Hoffman reached in 5
his report? 6
MR. HENTOFF: Your Honor, I could not disagree 7
more strongly. And we cover that in our reply brief. 8
Give me a moment, please. So, we cover that in our reply 9
brief at largely pages 18 to 22. And that's what I said 10
when I got up, Your Honor, which is the plaintiffs just 11
misstate what Sidley's report said about interrogation 12
policies and then they cite to a number of reports that 13
say things that don't contradict what the report said. 14
So, we address almost everything that Ms. Forrest said, 15
the reports that she listed. We address in that page 16
range and around that page range, where we say this is 17
what the report actually said. And I thought what Ms. 18
Forrest said is pretty emblematic of that. She said 19
Sidley said things in pages nine through 12. That's a 20
lot of pages. In our reply brief, we talked about the 21
actual words that were used and we show what they meant. 22
So that's, the short answer to your question is we 23
address in the reply brief that nothing that the 24
plaintiff submitted contradicted what the Sidley report 25
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said. 1
Your Honor asked me about serious doubts. 2
That's from the Saint Amant (phonetic sp.) case, and we 3
cite it and quote it at page 17 of our opening brief. 4
So, I'd like to address a number of the plaintiff's 5
comments and I'll do it as succinctly as I can. I'm back 6
to the actual malice standard. One thing you don't see 7
discussed in the plaintiff's briefing is the clear and 8
convincing evidence standard, and that's important in a 9
case like this. And the Mann case talked about the 10
importance of it, which is the burden on the plaintiffs 11
is to show that the finder of fact could have, could find 12
clear and convincing evidence that, again, that what? 13
That Sidley knowingly made false statements 14
about the three plaintiffs or subjectively believed that 15
they were saying things that were probably false? The 16
burden on the plaintiffs is to show that on summary 17
judgment they've got enough evidence that a finder of 18
fact could have an abiding conviction that the plaintiffs 19
have probably proved their case. And I think there's a 20
reason why we don't hear that from them because it's so 21
important in this case. Mr. Clare talked about the 22
ability to aggregate circumstantial evidence. What I'd 23
like to point out is, Mr. Clare said there are six types 24
of circumstantial evidence that courts have considered in 25
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actual malice cases. And I believe, I'm not sure if it's 1
in there but there's an excellent presentation about 2
defamation law on the DC Bar website that Mr. Clare's law 3
firm presented recently. And these are sort of well-4
known six categories, so it's no coincidence that they 5
make these six allegations against Sidley, because that's 6
sort of the building blocks. That's what they have to 7
allege. But the main point that I want to make is, I 8
think we do a very good job in our reply in properly 9
presenting their legal relevance but then showing the 10
everything that the plaintiffs try to say about why 11
Sidley had a preconceived notion or a bias, we deal with 12
that in our reply and as a factual matter, it falls away. 13
The plaintiffs contradict themselves. They 14
have no evidence because they're stuck. An independent 15
law firm without a bias came in and was hired because 16
they were independent, and they made findings that the 17
plaintiffs don't like. So, they went to the six buckets 18
that they're supposed to go to to try to make an 19
argument. And we present, we show why they failed and 20
that's why, even if you could, and you can't aggregate 21
circumstantial evidence. But there has to be some, and 22
they don't have any. And also, it's not enough to have 23
one piece of circumstantial evidence and then a second 24
one. Mr. Clare talked about a wall. And it's a high 25
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wall because of the clear and convincing evidence 1
standard and two bricks don't make a wall. The Eramo 2
case that Mr. Clare talked about, the Court, I guess in 3
denying summary judgment, the Court found there were a 4
number of pieces of evidence against Rolling Stone in 5
that case. Preconceived narrative, on its own, didn't 6
get the plaintiffs over the hump. And as we note in our 7
reply brief, the argument, and of course, the Eramo case 8
is the famous Rolling Stone case about the woman that 9
said she was raped in the fraternity and it turned out 10
she had fabricated it and the whole thing fell apart. 11
It's a very extreme case. And in that case, the Court 12
held that the reporter, not, didn't merely have, there 13
was actually evidence of a preconceived narrative but 14
then she altered the facts to fit that narrative and 15
that's what helped that case survive summary judgment. 16
Purposeful avoidance. Mr. Clare makes it seem 17
like purposeful avoidance is a pretty common thing in 18
actual malice cases but it isn't because the basic law is 19
if the plaintiff's argument is, wow, the defendants did a 20
terrible investigation, they're not very good at this, 21
they missed all these things, they're negligent, in an 22
actual malice case, that's a defense. Negligence and 23
incompetence, which didn't happen here, but if it did 24
happen in a case, that's a defense. That's why people 25
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like being media lawyers. Purposeful avoidance is rare. 1
The leading case which they cite is Harte-Hanks. In 2
Harte-Hanks, there was all this information that the 3
reporter had that the allegation that somebody had given 4
a bribe was not true. And there were two witnesses. And 5
one of the witnesses who would have said it was not true, 6
which was made available to them and they didn't 7
interview the witness. 8
A tape recording which was represented to them 9
as disproving the story was made available to them and 10
they didn't go look for it. That's a rare circumstance. 11
The Tally case, which I talked about, the 2019 Sports 12
Illustrated case in the Tenth Circuit, takes that head on 13
and said when you have this evidence, an extensive 14
investigation, and you don't have the countervailing 15
evidence of reasons to disbelieve things, that's in no 16
way purposeful avoidance. 17
THE COURT: Let me ask you something. What 18
should I make of the affidavits that contest that the way 19
certain statements were omitted from or misconstrued in 20
the report? 21
MR. HENTOFF: A couple things, Your Honor. We 22
address those affidavits in our reply brief. And the 23
burden's on the plaintiff. They got to show what's the 24
statement in the report that's about one of the 25
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plaintiffs that shows that Sidley made that statement 1
thinking it was probably false. And the affidavits don't 2
do that. A lot of the affidavits, as we say in our 3
report, they address things the report didn't say. So, 4
one of the affidavits that the plaintiffs present most 5
prominently in their direct evidence section was someone 6
who said Colonel Banks worked to prevent abuse. There's 7
nothing in the report that said he didn't. 8
So that's an affidavit that doesn't refute 9
anything in the report. A lot of the affidavits talk 10
about the report's criticism of the APA ethics 11
adjudication process. Almost none of them are about the 12
plaintiffs in this case. The plaintiffs in this case 13
were not on the ethics committee of the APA. That, those 14
were employees, or the ethics office, those were 15
employees, the ethics committee, those are officers of 16
the APA. So those statements don't have anything to do 17
with the plaintiffs. But even if they did, we show in our 18
reply brief that the complaints in those affidavits just 19
don't square with the simple review of the report. 20
THE COURT: Well, it is, was Sidley Austin 21
aware of the IG report? Was Sid aware of anything that 22
Jack Goldsmith wrote? 23
MR. HENTOFF: Those are terrific examples. 24
Okay? The IG report talked about, through the history of 25
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interrogations and I'm not remember which theater. Okay? 1
And it talked about, in part, the development of 2
policies. And what plaintiffs actually cite to is an 3
appendix at the end of the report that just lists 4
polices. That's what it does. Okay? It just lists 5
policies. But my point is, we show in our reply brief 6
that when the Sidley report talked about then existing 7
DOD guidance, we show that in context they were talking 8
about the guidance for psychologists who support 9
interrogations and not the rules for interrogators about 10
what techniques they can use. 11
So, when Ms. Forrest cites to the report about 12
what techniques interrogators can use, that has nothing 13
to do with what we were talking about. That's my point. 14
So, it doesn't contradict what we were pointing, talking 15
about. Now, the Jack Goldsmith book. Yes, Sidley was 16
aware of it. And the Jack Goldsmith book just said 17
something that was common knowledge, which was you have 18
the so-called torture memos in 2002 that were drafted by 19
John Yoo that said certain techniques don't qualify as 20
torture and so they're allowed. And then in 2004, Jack 21
Goldsmith withdrew those torture memos. 22
At the end of 2004, I guess acting OLC Levin 23
issued new memos, new OLC memos, and then in 2005, Mr. 24
Bradbury at the OLC issued new memos and Sidley cited the 25
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2005 memos. Okay? The 2005 memos, which were active at 1
the time of PENS and the report said they were active at 2
the time of PENS and those memos said waterboarding is 3
not torture. Okay? And simply said it, we cite the page 4
number in our reply brief, but there's no issue of 5
withdrawn memos because we cited the in effect memos in 6
2005 and say this was in effect at the time of PENS. And 7
just to add to this a little bit, after the Yoo memos 8
were withdrawn, the Levin memo was presented by OLC in 9
December of 2014 and has a footnote. 10
And the footnote says we've withdrawn the Yoo 11
memo, but every activity that occurred under the Yoo memo 12
is still okay. It's not even any different in any 13
significant sense. Now a definition of torture still 14
applies across all the memos. And then I finally say 15
plaintiffs have even tried. Okay. It's an interesting 16
policy discussion, but how does that show that Sidley 17
made a false statement knowingly about one of the 18
plaintiffs? 19
So, I'd just like to continue with a few more 20
things. Ms. Forrest said the report said it's all a joint 21
venture. This illustrates our point. It's a 542 page 22
report. It has a lot of different things in it. Okay? 23
You have to look at the specific statement. For example, 24
it didn't say the ethics adjudications was all a joint 25
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venture involving, you know, Colonel Banks. Everything 1
that Ms. Forrest said about the PENS Leserve (phonetic 2
sp.) about statement four of the PENS guidelines. We 3
talked about that in our reply brief. And again, Ms. 4
Forrest illustrated our point. She said, hey, the PENS 5
guidelines were pretty good because they specifically 6
said go look at the local policies. But that's our 7
point. The point of the report was there were people in 8
the PENS task force that wanted the APA guidelines to 9
have specific prohibitions on things like stress 10
positions. And what APA ultimately did is said, well, 11
we're not going to have our own guidelines about specific 12
prohibitions. 13
We're going to defer to the military. So, when 14
Ms. Forrest cites statement four of the PENS task force, 15
which says look to the current military policies, that's 16
my point. That supports what the report said. 17
Ms. Forrest talked about one of the 150 people were 18
interviewed who said a couple of things and Ms. Forrest 19
said one of the things that he said wasn't captured in 20
the interview. Well, I looked at the page number that 21
she cited, and I've got my copy of the Sidley reports 22
color coded, so I can see which passages the plaintiffs 23
have sued over of the 219, not even in there. It's not 24
even a statement that they're saying is false and 25
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defamatory. I must confess I'm still a little unclear 1
about how I was wrong about saying colonel, but it's 2
still colonel. And we didn't cherry pick the complaint. 3
We looked at the relevant parts of the 4
complaint where they talked about how important their job 5
was and how consequential it was for something that had a 6
lot of authority over the lives of people. How were you 7
going to support interrogations of detainees? I mean, I 8
can't imagine a clearer case of a public official for 9
having responsibilities that are significant enough that 10
the public should care about a report about them. 11
Rosenblatt, which is the Supreme Court case 12
from 1966, I think remains the key case. One thing I 13
neglected to mention in my, initially is the plaintiffs 14
do cite a mid-1980's federal DC District Court case that 15
uses the language they need to be high ranking officials. 16
That, they don't cite, I think they, oh, so they do, I'm 17
sorry, that quoted verbatim, like in 1966 or 65 DDC case, 18
only point I want to make is Rosenblatt came out later. 19
So admittedly, the 80's case is after Rosenblatt, but 20
Rosenblatt controls and other cases have said this high 21
ranking statement, it's wrong. It's not limited to high 22
ranking people and we cite the leading defamation 23
treatise by Judge Sack of the Second Circuit and they 24
also say, and the treatise says, looking all the cases, 25
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it's not limited to high ranking people. Okay. 1
Public forum. We're now on the coverage of the 2
act. We state in our reply, this is very important, 3
whether speech is protected under the Anti-SLAPP Act, 4
under the definition, there are three ways to be 5
protected under section one. It's something or something 6
or something. So public forum is one of the ways. But 7
we're also covered by the third way, which is any other 8
expression that involved, and I'm doing ellipses here, 9
but any other expression that involves communicating 10
views to members of the public in connection with an 11
issue of public interest. And that's what Sidley did and 12
that's what APA did in distributing the report. And the 13
plaintiffs make the argument that, well, Sidley just 14
delivered the report to the board of directors and then 15
the board decided to publish it. 16
That's true. But the act protects expression 17
that involves communicating views to the public, 18
involves, not constitutes, but involves, and that's 19
critical in this case because at the very beginning, when 20
Sidley was retained, APA said we will make this public. 21
Sidley knew APA was making it public. It provided the 22
report to its client. The only entity that could decide 23
whether to make it public is the client. And the client 24
did make it public. 25
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So absolutely, Sidley's preparation of a report 1
for the public is protected, because it involves 2
communicating views to the public. The law doesn't say, 3
well, if the reporter submits a draft to the editor, the 4
reporter's not protected. The language is clear and it's 5
also a remedial statute, so we have to give the language 6
a reasonable and broad meaning to effectuate the remedial 7
nature of the statute. 8
All right. I'm nearing the end. Mr. Oliveri 9
on republication. Our count 11 reply brief covers all of 10
this. Mr. Oliveri made a couple of statements that are 11
inaccurate. Our motion accurately stated that count 11 12
of the complaint failed even to plausibly allege any 13
facts that Sidley had any involvement in this, these 14
website changes that we're talking about. APA made 15
website changes three years after the report. Sidley had 16
nothing to do with it. 17
So, the plaintiffs have to be stuck with the 18
complaint they actually filed, not the complaint that 19
they wish they filed. And their complaint made two 20
allegations against Sidley. Okay? The first allegation 21
was this conclusory allegation that Sidley was actually 22
involved in the website changes. We responded that's 23
completely conclusory but no basis to say that Sidley had 24
anything to do with these August 2018 website changes. 25
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In their reply brief, silence. They've abandoned that 1
point. Then they say, well, it was reasonably 2
foreseeable. And they provided allegations in their 3
complaint as to why it was reasonably foreseeable to 4
Sidley. Both of the examples were not from 2015, as Mr. 5
Oliveri says. They're from 2018 about briefs that the 6
plaintiff here filed. And we talk about that in our 7
opening brief and another reply brief. 8
It doesn't matter. If they're saying something 9
was reasonably foreseeable to us in 2018, we didn't do 10
anything in 2018. Now they say they wish they'd made the 11
allegation it was reasonably foreseeable to us in 2015. 12
We didn't do it. And if they had done it, and we say 13
this in our paper, it wouldn't matter because if they had 14
said it was reasonably foreseeable to us in 2015, we'd 15
say, look. 16
Actual malice is still what is the state of 17
mind of the defendant at the time of publication, which 18
was September 2015, so we'd have just said see our 19
original motion. That's our state of mind in 2015. So, 20
all of the assertions that Sidley, you know, didn't take 21
into account, their arguments are wrong. And I want to 22
be clear about one thing. We've never said that the APA 23
republication on the website in 2015 was not foreseeable. 24
We've never made that argument. We've accepted that. So 25
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there really is no factual or legal basis for trying to 1
make Sidley liable for these website changes, which as 2
Ms. Wahl has demonstrated, aren't even a republication, 3
anyway, but there's no basis to bring Sidley into that. 4
If anything, it's an example of why this case really 5
should come to an end, because plaintiffs have not been 6
able to make their case, yet they keep trying to expand 7
it. 8
Finally, choice of law. Plaintiffs also filed 9
a motion to invalidate the statute, brought in the DC 10
Attorney General, did a lot of briefing, didn't win on 11
that. Again, we say this in our reply brief but it's 12
very clear that the great weight of the governmental 13
interest in this case rests in the District of Columbia, 14
where the plaintiffs brought their case. Most important 15
thing, the two most important things are first place of 16
the conduct and then domicile of speakers. The conduct 17
is the speech. The speech came from APA. APA is a DC 18
entity. 19
The plaintiffs may say that APA is, their board 20
of directors are spread around, but they weren't sued. 21
They're seeking millions of dollars from APA, which is a 22
DC association. APA made the decision to publish in DC. 23
Sidley was their lawyer. Sidley had no authority to 24
publish the report. The reason we're here in court with 25
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a defamation case is because APA made good on its word 1
and it decided to publish. The place of the conduct was 2
DC. That was the dominant publication in this case. 3
There's an allegation that Sidley was involved, 4
that Sidley leaked the report, frivolous. It's not 5
disputed, it's not a factual dispute. Plaintiff submitted 6
an affidavit from an expert, which didn't say Sidley sent 7
the report. We submitted an affidavit from an expert 8
that said everything plaintiff's expert said is correct. 9
The metadata doesn't show any proof that Sidley had 10
anything to do with leaking the report. The only dispute 11
is between the plaintiff's expert and plaintiff's 12
lawyers. It is a frivolous allegation. The dominant 13
publication in this case was the client's, APA's decision 14
to make good on its word, publish the report to the 15
public. Therefore, the greatest weight of government 16
interest is here in DC. And I'll add -- 17
THE COURT: If the dominant, are you saying 18
that was the dominant publication? Was there a previous 19
publication that wasn't dominant? 20
MR. HENTOFF: So, the plaintiffs have broken up 21
their case into multiple complaints. So, one of their 22
counts is Sidley gave the report to the board, special 23
board, the board of directors. Another count is the 24
special board sent it out to a smaller group and then 25
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another count is put on the website. By dominant 1
publication, I mean it's the publication that went the 2
furthest. Okay? 3
THE COURT: So, are you saying that if an 4
attorney conducts the job for which she was hired to do 5
and then she turns over a work product to her client that 6
that constitutes publication? 7
MR. HENTOFF: Well, under defamation law, it's 8
an if. That's an interesting question under DC law and I 9
think that would take us afield. But generally, a 10
publication under defamation law is a publication to a 11
third party. So interesting question whether a lawyer to 12
a client's a publication, but you know, if they're third 13
parties and we haven't challenged that as one of the 14
publication counts. 15
Mr. Oliveri didn't mention one fact, which is 16
in our briefs. They sued Sidley's DC partnership. 17
That's one of the defendants. That's one of the clients 18
I'm representing. They agree that the domicile of the 19
defendants, of the speaker's important. We've got DC, 20
also. So, clearly, and then on top of that, the weight 21
of the parties' relationship is the plaintiffs and the 22
defendants. And this is about what the people did at the 23
PENS task force and what they did with APA. Why was 24
there a big controversy? There wasn't a controversy in 25
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Illinois. There was a controversy in Washington DC. DC 1
is clearly the jurisdiction that is the greatest interest 2
in this case and in the protection of the decision of APA 3
to make good on its word and publish this report. 4
So, my concluding thought is, we're at the end. 5
We've said this is a case without merit. The protection 6
of the DC Anti-SLAPP Act means it should be ended. One 7
observation I have is one would expect in a defamation 8
case, by the time we got to this point, that there would 9
be a clear statement in the brief. Here is a statement 10
about Colonel Donovan, Colonel Banks, Colonel James, in a 11
brief. It's a false statement. Here's why Sidley made 12
that false statement. We don't get that. Instead, we 13
get all of this multiplication of discussions about 14
everything. There's a reason that we don't have this 15
clear statement in our mind. It's because it's not 16
there. And it's time to end the case. Thank you, Your 17
Honor. 18
THE COURT: Mr. Hentoff, thank you. Ms. Wahl? 19
MS. WAHL: I'm well aware that I'm the one 20
standing between lunch and bathroom breaks, so I will be 21
quick. Mr. Clare made a comment about the three Saint 22
Amant factors and indicated that they are not an 23
exclusive list. Actually, the DC case law says, there's 24
language to the effect that that is the exclusive list. 25
TKG
101
And then there's one other case that says, no, that's 1
illustrative and you can have other circumstances. But 2
the three Saint Amant factors are really significant 3
because they are of such gravitas and so important that 4
these other circumstantial factors, the other six buckets 5
don't come close. And there's no question that here we 6
don't have fabrication of evidence, anonymous sources and 7
the other issues of that nature. Instead, we have, well, 8
did Nadine Kaslow mean that she was trying to blame 9
somebody else? Well, it's not of the same nature as 10
literally fabricating something or pretending there's a 11
source that doesn't exist. Mr. Clare made this great 12
analogy about the wall. The problem is that the bricks 13
that add up to the wall each have to be bricks. And if 14
bricks don't stand, the sum of those bricks are not 15
greater than the individual parts. And I think what we 16
have last spent the last two and a half hours 17
demonstrating is that not a single one of those bricks 18
stands, with or without mortar, they just don't add up to 19
actual malice. 20
Ms. Forrest said something about this is a 21
joint enterprise and that's why all of the analogies or 22
all of the so-called evidence involving Dr. Behnke should 23
be allowed. The plaintiffs are three individuals. It's 24
not a joint enterprise. The evidence has to be linked 25
TKG
102
between those plaintiffs and facts and statements about 1
those plaintiffs. The case law couldn't be more clear. 2
You can't sort of make a cloud about, well, they're part 3
of the group. That is who the connection has to be tied 4
through. There's got to be a connection between an 5
individual defendant, an individual statement, and an 6
individual plaintiff, and they cannot do that and have 7
not done that here. The studies they refer to that were 8
in everybody's file, everybody should have known that 9
that showed actual malice. There were no crimes. The 10
FBI said there were no issues here. Actually, that has 11
almost nothing to do with this case because if 18 12
studies, or whatever the number was that Ms. Forrest 13
quoted, said that there was no problem here, then APA 14
would never have had to hire Sidley to go look at this 15
issue. 16
What Sidley looked at was totally different. 17
They had access to all of APA's internal information. 18
They interviewed all of these people. The other studies 19
were different matters. APA went about this for its own 20
purposes. The senate had its own reasons, but APA 21
conducted, had Sidley conduct this independent review for 22
very definite reasons and opened its files and made its 23
members all, and officers and employees available. That 24
was not covered in any other report. 25
TKG
103
Ms. Forrest made reference to the fact that, 1
well, these resolutions, these policies were an open 2
process. And yet, the evidence that she, herself, has 3
supplied through her briefs were that there were private 4
e-mails being exchanged between Dr. Behnke and Dr. Banks 5
for your eyes only. They were the only ones who were 6
exchanging these e-mails. How is that part of an open 7
process? There's no evidence in the record that these 8
private e-mails were then shared with counsel or anyone 9
else. It is not mutually exclusive to have council 10
meetings, committee meetings and still have parties 11
working behind the scenes. Clearly, they were doing that 12
because that's what the e-mails are that she's so nervous 13
about. 14
Very important. Counsel for the plaintiffs 15
keep talking about the reasonable inferences that they're 16
entitled to. We would submit, Your Honor, that there are 17
no reasonable inferences that go as far as they're 18
suggesting. It is not reasonable to say that somebody 19
who was on the board of APA in 2015, who may or may not 20
have read the entire 542 pages and understood all of it 21
and voted to release the report, remembered that she 22
served on a committee in 2006 where the issue of a 23
resolution was discussed and she may not have been there 24
for that meeting or she may have been, who knows. She 25
TKG
104
may not have remembered. And because her committee 1
discussed this question that was then maybe incorporated 2
into some evidence that went into the report, that that 3
is a reasonable inference that she knew something in the 4
report was false. Nothing about that is reasonable. 5
That is too many remote non-connections to constitute 6
actual malice. 7
Ms. Forrest made a number of references to 8
conversations with David Ogden. We submit, Your Honor, 9
that, as you stated, Ms. Forrest is not a witness in this 10
case, there are no affidavits that reference David Ogden 11
and that portion of her argument should be disregarded 12
completely. She also made further comments about what 13
people would testify to. Again, we would urge Your Honor 14
to disregard that because we're not here to talk about 15
what will happen down the road. The question is, do they 16
have a case that they can demonstrate now. They have not 17
done so. 18
Republication. The two cases that stick in my 19
mind, anyway, and I believe there were only three that 20
were cited by the plaintiffs with regard to why the 2018 21
changes to the website constitute republication. The two 22
cases that they cited are worlds different from what 23
happened here. In Eramo, there was a banner ad in an 24
appendix to the original report that changed everything. 25
TKG
105
It added new facts. In the LeRue (phonetic sp.) case, 1
there were statements published on a website and there 2
were comments added by Ms. LeRue, I believe, well, the 3
defendant. She added new allegations about the supposed 4
sexual abuse that restated the prior statements and added 5
new facts. This is a totally different ball game. 6
There's nothing about the changes to the 7
website in 2018 that restated the original report. Mr. 8
Oliveri said republication is a fact and that's why here 9
the Court should find there's been republication. 10
There's no factual dispute about what happened here. Mr. 11
Fredley (phonetic sp.), who is the APA affiant who is 12
essentially the webmaster, they haven't refuted anything 13
he said. He said what happened. They haven't 14
disregarded that, they haven't refuted that, it is not 15
rebutted. We know what happened. The question is a 16
question of law. Does that constitute republication 17
under the very clear case law? It is not. 18
Last and I don't think least is the choice of 19
law question. APA is a DC corporation. Its only office 20
is in the District of Columbia. It, the PENS task force 21
met in the District of Columbia. At the filing of the 22
first complaint, two of the plaintiffs were DC residents. 23
The meetings that happened that are discussed in the 24
report where all of these committees discussed the 2007 25
TKG
106
proposal all the way on up to 2014, these meetings took 1
place in the District of Columbia, by and large. The 2
ethics office personnel all acted in the District of 3
Columbia. Clearly, the center of gravity in this case is 4
the District of Columbia. The only thing that happened 5
in Illinois was Mr. Hoffman presumably went home and went 6
to bed there. And the agreement, the retainer agreement 7
between Sidley and APA, as the Court has already seen, 8
the Illinois factor only comes in if there is a dispute 9
between Sidley and APA. That's not what we're talking 10
about here. No question that the center of gravity of 11
this dispute is the District of Columbia. The witnesses 12
are here, APA is here, Sidley acted here and it is the 13
District of Columbia that has the most significant 14
interest in this dispute and its law should apply. Thank 15
you. 16
THE COURT: Thank you. All right. Just give 17
me a second, please. All right. First of all, I'd like 18
to thank counsel across the board for the very well 19
written and thoroughly researched briefs that they filed 20
in support of their respective positions, as well as 21
being prepared to thoroughly defend the positions that 22
we're advancing in our conversation today. Today is 23
February the 21st. An order will issue from chambers 24
resolving the motions no later than March 20th. 25
TKG
107
Thank you very much. Have a good afternoon. 1
ALL PARTIES: Thank you, Your Honor. 2
(Thereupon, the recording ended abruptly.) 3
4
√ Digitally signed by Tami Grace
ELECTRONIC CERTIFICATE
I, Tami Grace, transcriber, do hereby certify
that I have transcribed the proceedings had and the
testimony adduced in the case of STEPHEN BEHNKE, ET AL V.
SIDLEY AUSTIN, LLP, ET AL, Case No. 2017 CAB 005989 in
said Court, on the 21st day of February, 2020.
I further certify that the foregoing 106 pages
constitute the official transcript of said proceedings as
transcribed from audio recording to the best of my
ability.
In witness whereof, I have hereto subscribed my
name, this 28th day of February, 2020.
Transcriber
1
SUPERIOR COURT FOR THE DISTRICT OF COLUMBIACivil Division
STEPHEN BEHNKE, et al., ))
v. ) 2017 CA 005989 B ) Judge Hiram E. Puig-Lugo
)DAVID D. HOFFMAN, et al., )
)
ORDER
This matter comes before the Court on (1) Defendant American Psychological
Association’s (“APA’s”) Contested Special Motion to Dismiss Under the D.C. Anti-SLAPP Act
D.C. Code § 16-5502, filed October 13, 2017; (2) Defendants Sidley Austin LLP, Sidley Austin
(DC) LLP, and David Hoffman’s (collectively “Sidley Austin’s”) Contested Special Motion to
Dismiss Under the District of Columbia Anti-SLAPP Act, D.C. Code § 16-5502, filed October
13, 2017; (3) Defendant APA’s Contested Special Motion to Dismiss Count 11 of the
Supplemental Complaint Under the D.C. Anti-SLAPP Act, D.C. Code § 16-5502, filed March
21, 2019; and (4) Defendants Sidley Austin’s Contested Special Motion to Dismiss Count 11 of
the First Supplemental Complaint Under the District of Columbia Anti-SLAPP Act D.C. Code §
16-5502, filed March 21, 2019. On November 15, 2019, Plaintiffs filed a consolidated
Opposition to APA and Sidley Austin’s (collectively “Defendants’”) Second Set of Contested
Special Motions to Dismiss filed March 21, 2019. On November 18, 2019, Plaintiffs filed a
consolidated Opposition to Defendants’ First Set of Contested Special Motions to Dismiss filed
October 13, 2017. On December 13, 2019, Defendants filed Reply briefs in support of their
Special Motions to Dismiss. On February 21, 2019, the Court held a hearing on the parties’
Special Motions to Dismiss.
FiledD.C. Superior Court03/11/2020 14:54PMClerk of the Court
2
This case involves the Independent Review Report (“the Report”) that Defendant APA
commissioned Defendant Sidley Austin to perform and subsequently published on its website.
The Report addressed the ongoing national conversation about the role of psychologists in
national security interrogations and explored whether APA officials had colluded with the Bush
administration, CIA, or U.S. military officials to support the torture of persons detained after the
events of September 11, 2001. The Report reached various conclusions in that regard, including
that “key APA officials…colluded with important DoD officials to have APA issue loose, high-
level ethical guidelines that did not constrain DoD in any greater fashion than existing DoD
interrogation guidelines.” Report at 9. The Plaintiffs, who are three former Army Colonels,
disagree with the Report’s conclusions and have brought claims of defamation per se,
defamation by implication, and false light against the Defendants.1
To begin, it is important to note that Special Motions to Dismiss do not require this Court
to determine whether the information in the Report is accurate or inaccurate. The purpose of
such motions is not to determine whether a defendant actually committed the tort of defamation,
but “whether the defendant is entitled to immunity from trial.” See Competitive Enter. Inst. v.
Mann, 150 A.3d 1213, 1230 (D.C. 2016). Thus, the role of the court is to determine whether or
not the motion to dismiss should be granted, when all statutory requirements are satisfied, as a
matter related to issues that concern public participation. To that end, a court must determine
whether a defendant has made a prima facie case that the D.C. Anti-SLAPP Act is applicable,
and if so, whether a plaintiff has shown that a defendant either knew that contested statements
were false or acted with reckless disregard of their falsity. Here, the amended complaint also
raises concerns about the legal implications of an alleged subsequent republication.
1 Two other Plaintiffs who were APA officials have been referred to arbitration consistent with their employment contracts with the APA. Those former Plaintifs are Dr. Stephen Benhke and Dr. Russell Newman.
3
The Court has considered the parties’ pleadings, the relevant case and statutory law, and
the entire record. For the following reasons, the Defendants’ four Special Motions to Dismiss
under the D.C. Anti-SLAPP Act, D.C. Code §§ 16-5501 to 5505 are granted.
I. BACKGROUND:
On August 28, 2017, Plaintiffs filed a Complaint against Defendants asserting ten counts
of defamation per se, one count of defamation by implication, and one count of false light. On
February 4, 2019, Plaintiffs filed a Supplemental Complaint adding an additional count of
defamation per se.2
The Plaintiffs are three individuals who served as military psychologists and retired as
Army Colonels. Plaintiff Dr. L. Morgan Banks, III (“Plaintiff Banks”) served as the Director of
Psychological Applications for the United States Army’s Special Operations Command. Supp.
Compl. ¶ 39. In that role, Dr. Banks “provided ethical as well as technical oversight for all Army
Special Operation Psychologists.” Id. For her part, Plaintiff Dr. Debra L. Dunivin (“Plaintiff
Dunivin”) served as Chief of the Departments of Psychology at Walter Reed Army Medical
Center and Walter Reed National Military Medical Center, where she “consulted with
commanders in Guantanamo, Iraq, and the Army Medical Command.” Id. ¶ 41. In addition, Dr.
Dunivin “served in the Army Inspector General’s inspection of detention facilities.” Id. Finally,
Plaintiff Dr. Larry C. James (“Plaintiff James”) served as Chief of the Department of Psychology
at Walter Reed Army Medical Center and Tripler Army Medical Center, and as Director of
Behavioral Science at Guantanamo and Abu Ghraib, Iraq. Id. ¶ 42.
The Defendants are (1) the APA, a Washington, D.C. based non-profit professional
organization for psychologists, id. ¶ 48, (2) David Hoffman, a partner at Sidley Austin LLP, id. ¶
2 The defamation per se count added in the Supplemental Complaint appears as Count 11 and is the subject of two of the four Special Motions to Dismiss.
4
46, (3) Sidley Austin LLP, a law firm comprised of a group of limited liability partnerships, id. ¶
47, and (4) Sidley Austin (DC) LLP. Id.
After September 11, 2001, reports of detainee abuse, the use of enhanced interrogation
techniques and the role of psychologists in those interrogations became a topic of public
scrutiny. Supp. Compl. ¶ 70; Oct. 13, 2017 Sidley Austin Mot. at 4. In 2004, as media coverage
of this topic continued to increase, the New York Times published an article about the role that
psychologists played in enhanced interrogations. Supp. Compl. ¶ 70; Oct. 13, 2017 Sidley
Austin Mot. at 4. In response to the New York Times article, the APA established the PENS3
Task Force “to explore the ethical dimensions of psychology’s involvement and the use of
psychology in national security-related investigations.” Supp. Compl. ¶ 71. Plaintiffs Banks and
James were members of the PENS Task Force. Id. ¶ 73. Plaintiff Dunivin was not a member of
the PENS Task Force but made recommendations to the APA about who should be selected to
serve on the task force. Id. ¶ 45. In the end, the PENS Task Force did not ban psychologists
from assisting in interrogations. Oct. 13, 2017 Sidley Austin Mot. at 5. Rather, the PENS Task
Force drafted twelve statements framing “ethical guidelines for psychologists involved in
interrogations.” Oct. 13, 2017 Sidley Austin Mot. at 5; see also Supp. Compl. ¶ 75. The APA
Board adopted these statements on July 1, 2005. Supp. Compl. ¶ 77.
Nine years after the PENS Task Force completed its work, New York Times Reporter
James Risen published the book titled Pay Any Price. Oct. 13, 2017 Sidley Austin Mot. at 8. In
his book, Risen claimed that the “APA colluded with the U.S. government to support torture,
including that the outcome of the PENS Task Force was a result of collusion between APA and
the Government.” Oct. 13, 2017 Sidley Austin Mot. at 8 (citing Compl. ¶¶ 2, 3). In response to
the allegations, in 2014 the APA retained the law firm Sidley Austin to conduct an independent
3 PENS stands for Psychological Ethics and National Security. Supp. Compl. ¶ 72.
5
review into Risen’s contentions that the APA colluded with the government to support torture.
Oct. 13, 2017 Sidley Austin Mot. at 1.
The investigation spanned more than eight months, interviewed approximately 150
individuals, and studied more than 50,000 documents as part of the independent review. Id. at 8.
It resulted in a report that consists of 541 pages and 7,600 pages of exhibits. Oct. 13, 2017 Sidley
Austin Mot. at 8; Oct. 13, 2017 APA Mot. at 4. Sidley Austin provided the Report to the APA in
July 2015. Oct. 13, 2017 Sidley Austin Mot. at 8. On July 10, 2015, a leaked copy of the Report
was published on The New York Times’ website. Oct. 13, 2017 APA Mot. at 4. On that day, the
APA published the Report on its website. Id. Two months later, on September 4, 2015, a revised
version of the Report was posted on the APA’s website. Nov. 15, 2019 Pls. Opp’n at 3.
The Report identified Plaintiff Banks as “the key DoD official [with whom the APA
Ethics Director] partnered with…,” and Plaintiff Dunivin as “the other DoD official who was
significantly involved in the confidential coordination effort….” R. at 12-13. The Report
reached several conclusions including:
“[K]ey APA officials, principally the APA Ethics Director joined and supported at times by other APA officials, colluded with important DoD officials to have APA issue loose, high-level ethical guidelines that did not constrain DoD in any greater fashion thanexisting DoD interrogation guidelines.” Id. at 9.
“[I]n the three years following the adoption of the 2005 PENS Task Force Report as APA policy, APA officials engaged in a pattern of secret collaboration with DoD officials to defeat efforts by the APA Council of Representatives to introduce and pass resolutions that would have definitely prohibited psychologists from participating in interrogations at Guantanamo Bay and other U.S. detention centers abroad. The principal APA official involved in these efforts was once again the APA Ethics Director, who effectively formed an undisclosed joint venture with a small number of DoD officials to ensure that APA’s statements, and actions fell squarely in line with DoD’s goals and preferences.” Id.
“We did not find evidence to support the conclusion that APA officials actually knew about the existence of an interrogation program using ‘enhanced interrogation techniques.’” Id.
6
Ethics complaints were mishandled to protect national-security psychologists from censure. Id. at 10.
Plaintiffs allege that the Report contains false and defamatory statements that “destroyed
their reputations and careers.” Nov. 18, 2019 Pls. Opp’n at 2. In response to Plaintiffs’ initial
and supplemental complaints, Defendants filed four Special Motions to Dismiss under the D.C.
Anti-SLAPP Act.
II. CHOICE OF LAW:
As a threshold matter, the Plaintiffs argue that all four Special Motions to Dismiss must
be denied because the Illinois Anti-SLAPP Act, not the D.C. Anti-SLAPP Act, applies to this
case. Nov. 18, 2019 Pls. Opp’n at 73-82. The parties agree that there is a conflict between the
Illinois Anti-SLAPP Act and the D.C. Anti-SLAPP Act. See Nov. 18, 2019 Pls. Opp’n at 75;
Sidley Austin Reply to Pls. Nov. 18, 2019 Opp’n at 40.
Whenever a dispute arises about the applicable choice of law, the D.C. Court of Appeals
uses “the governmental interests analysis” to resolve the conflict. Hercules & Co. v. Shama
Rest., 556 A.2d 31, 40 (D.C. 1989)(citing Kaiser-Georgetown Cmty. v. Stutsman, 491 A.2d 502,
509 (D.C. 1985)). Under this approach, “the choice of law turns on which jurisdiction has ‘the
most significant relationship to the dispute,’ and ‘which jurisdiction’s policy would be more
advanced’ by applying its law.” USA Waste of Md., Inc. v. Love, 954 A.2d 1027, 1031 (D.C.
2008). When applying this standard, the Court of Appeals has relied on the four factors listed in
the Restatement (Second) of Conflicts of Laws § 145:
a) “the place where the injury occurred;
b) the place where the conduct causing the injury occurred;
c) the domicile, residence, nationality, place of incorporation and place of business of
the parties; and
7
d) the place where the relationship is centered.”
District of Columbia v. Coleman, 667 A.2d 811, 816 (D.C. 1995) (citation omitted).
Based on these factors as applied to the controversy here, the Court concludes that the
governmental interests of the District of Columbia outweigh the governmental interests of the
State of Illinois, because the District of Columbia is both the jurisdiction with the most
significant relationship to the dispute and with the greater interest in the outcome.
First, the injuries identified in the Supplemental Complaint occurred primarily in the
District of Columbia. Notably, Plaintiffs’ Supplemental Complaint states the following:
“[T]he false and defamatory statements made by Defendants about Plaintiffs were intentionally published and republished in the District of Columbia by each of the Defendants.” Supp. Compl. ¶ 60.
“As a result of that circulation, Plaintiffs were all injured by the defamatory statements in the District of Columbia….” Id.
“The publications and republications of the defamatory materials were widely circulated in the District of Columbia by each of the Defendants.” Id. ¶ 61.
Second, the Supplemental Complaint stems from alleged defamatory statements made in
the Report that were later published on the APA’s website. The Plaintiffs stress that Defendant
Hoffman drafted the report in Illinois, but ignore the role that attorneys from Sidley Austin’s DC
office played in the process. Indeed, it is noteworthy that Sidley Austin’s DC office is a
defendant in this case and that the Report lists several attorneys from that office among its
authors. See Sidley Austin Reply to Pls. Nov. 18, 2019 Opp’n at 42-43. Moreover, it was the
APA, an organization based in Washington, D.C., that hired Defendant Sidley Austin to conduct
an investigation into the actions of its employees, and where the principal publication occurred.
Supp. Compl. ¶ 60. Therefore, the District of Columbia is the primary place where the conduct
8
causing the injury occurred and possesses a stronger interest in addressing the consequences of
speech made within its borders.
Third, the domicile, residence, place of incorporation and place of business of the parties
favor applying the laws of the District of Columbia and not the laws of the State of Illinois.
While none of the Plaintiffs reside in Illinois, two of the four Defendants are located in the
District of Columbia.4
Fourth, the relationship between the parties is centered in the District of Columbia despite
the Plaintiffs’ claim that an engagement letter between the Defendants identifies the laws of
Illinois as the norms applicable to disputes between them. Nov. 18, 2019 Pls. Opp’n at 79. The
Plaintiffs were not parties to the engagement letter between the Defendants. There is no
indication in the letter that Defendants intended to apply the provision about the laws of Illinois
to third parties. Thus, the retainer agreement is irrelevant to this lawsuit, which is unrelated to
any dispute between the signatory to the letter. Moreover, the relationship between the Plaintiffs
and the APA is centered in the District of Columbia. Plaintiffs James and Dunivin are former
members of APA’s governing council, Sidley Austin Reply to Pls. Nov. 18, 2019 Opp’n at 42-
43, and Plaintiffs James and Banks were members of the PENS Task Force. Supp. Compl. ¶ 73.
Finally, the Plaintiffs relationship with Defendants Sidley Austin (DC) is based solely on a report
which was published and largely prepared in the District of Columbia.
Therefore, after reviewing the four pertinent factors, the Court finds that the
governmental interests of the District of Columbia outweigh the minimal governmental interests
of the State of Illinois. As the Plaintiffs recognize, “the jurisdiction with the most significant
4 APA’s principal place of business and place of incorporation is the District of Columbia. Supp. Compl. ¶ 60. Sidley Austin (DC) LLP’s principal place of business is the District of Columbia. Id. ¶ 47. Sidley Austin LLP’s principal place of business is Illinois. Id. David Hoffman lives in Illinois. Id. ¶ 46. Plaintiff Banks lives in North Carolina. Id. ¶ 39. Plaintiff Dunivin lives in California. Id. ¶ 41. Plaintiff James lives in Ohio. Id. ¶ 42.
9
relationship to the dispute… [is] presumptively…the jurisdiction whose policy would be more
advanced by application of its law.” Nov. 18, 2019 Pls. Opp’n at 76 (quoting Pietrangelo v.
Wilmer Cutler Pickering Hale & Dorr, LLP, 68 A.3d 697, 714 (D.C. 2013)). Here, that
jurisdiction is the District of Columbia.
III. LEGAL STANDARDS:
A. The D.C. Anti-SLAPP Act
“A ‘SLAPP’ (strategic lawsuit against public participation) is an action ‘filed by one side
of a political or public policy debate aimed to punish or prevent the expression of opposing
points of view.’” Mann, 150 A.3d at 1226 (quoting legislative history). The Anti-SLAPP Act
tries “to deter SLAPPs by ‘extend[ing] substantive rights to defendants in a SLAPP, providing
them with the ability to file a special motion to dismiss that must be heard expeditiously by the
court.’” Id. at 1235 (quoting legislative history). “Consistent with the Anti-SLAPP Act’s
purpose to deter meritless claims filed to harass the defendant for exercising First Amendment
rights, true SLAPPs can be screened out quickly by requiring the plaintiff to present her evidence
for judicial evaluation of its legal sufficiency early in the litigation.” Id. at 1239.
“Under the District’s Anti-SLAPP Act, the party filing a special motion to dismiss must
first show entitlement to the protections of the Act by ‘mak[ing] a prima facie showing that the
claim at issue arises from an act in furtherance of the right of advocacy on issues of public
interest.’” Id. at 1227 (quoting D.C. Code § 16-5502(b)).
“Once that prima facie showing is made, the burden shifts to the nonmoving party,
usually the plaintiff, who must ‘demonstrate[] that the claim is likely to succeed on the merits.’”
Id. at 1227 (quoting § 16-5502(b)). “[O]nce the burden has shifted to the claimant, the statute
requires more than mere reliance on allegations in the complaint, and mandates the production or
10
proffer of evidence that supports the claim.” Id. at 1233. “[I]n considering a special motion to
dismiss, the court evaluates the likely success of the claim by asking whether a jury properly
instructed on the applicable legal and constitutional standards could reasonably find that the
claim is supported in light of the evidence that has been produced or proffered in connection with
the motion.” Id. at 1232. “This standard achieves the Anti-SLAPP Act’s goal of weeding out
meritless litigation by ensuring early judicial review of the legal sufficiency of the evidence,
consistent with First Amendment principles, while preserving the claimant’s constitutional right
to a jury trial.” Id. at 1232-33.
“If the plaintiff cannot meet that burden [to establish a likelihood of success], the motion
to dismiss must be granted, and the litigation is brought to a speedy end.” Id. at 1227. As such,
Section 16-5502(d) requires the Court to hold an “expedited hearing” on the motion and to issue
a ruling “as soon as practicable after the hearing.” Finally, Section 16-5502(d) provides, “If the
special motion to dismiss is granted, dismissal shall be with prejudice.”
B. Defamation
“To succeed on a claim for defamation, a plaintiff must prove (1) that the defendant made
a false and defamatory statement concerning the plaintiff; (2) that the defendant published the
statement without privilege to a third party; (3) that the defendant’s fault in publishing the
statement met the requisite standard; and (4) either that the statement was actionable as a matter
of law irrespective of special harm or that its publication caused the plaintiff special harm.”
Mann, 150 A.3d at 1240 (quotation and brackets omitted).
In defamation cases that rely on statements made about public officials, plaintiffs must
present clear and convincing evidence that a defendant acted with actual malice. Phillips v.
Evening Star Newspaper Co., 424 A.2d 78, 84 (D.C. 1980). “A plaintiff may prove actual
11
malice by showing that the defendant either (1) had subjective knowledge of the statement’s
falsity, or (2) acted with reckless disregard for whether or not the statement was false.” Mann,
150 A.3d at 1252 (quotation omitted); see New York Times v. Sullivan, 376 U.S. 254, 280-81
(1964). “The ‘reckless disregard’ measure requires a showing higher than mere negligence; the
plaintiff must prove that ‘the defendant in fact entertained serious doubts as to the truth of [the]
publication.’” Mann, 150 A.3d at 1252 (quoting St. Amant v. Thompson, 390 U.S. 727, 731
(1968)). In comparison to the standard used for statements about public officials, the standard of
care for defamation of private individuals is that of negligence. See Kendrick v. Fox Television,
659 A.2d 814, 821 (D.C. 1995).
C. Republication
Whether the publisher of a defamatory statement may be liable for republication depends
on whether the publisher “edits and retransmits the defamatory material or redistributes the
material with the goal of reaching a new audience.” See Eramo v. Rolling Stone, LLC, 209 F.
Supp. 3d 862, 880 (W.D. Va. 2016)(internal citations omitted). “In the context of internet
articles…courts have held that ‘a statement on a website is not republished unless the statement
itself is substantively altered or added to, or the website is directed to a new audience.’” Id.
(internal citations omitted) (emphasis added). Thus, the relevant inquiry focuses on whether
there has been a change in the content of the defamatory statement or whether the publisher
actively sought a new audience.
IV. ANALYSIS:
Plaintiffs advance three arguments to counter the Special Motions to Dismiss filed here.
First, Plaintiffs argue that Defendants failed to make a prima facie case under the D.C. Anti-
SLAPP Act that the Plaintiffs’ claims address an act in furtherance of the right of advocacy on
12
issues of public interest. Second, Plaintiffs contend that they are private figures, not public
officials, and that negligence is the appropriate standard to evaluate their claims. Finally,
Plaintiffs maintain that they have shown they are likely to succeed on the merits of their
defamation and false light claims.
The Court will address each argument in turn.
A. Prima Facie Showing
The D.C. Anti-SLAPP Act requires that defendants make “a prima facie showing that the
claim at issue arises from an act in furtherance of the right of advocacy on issues of public
interest.” § 16-5502(b). This burden is “not onerous.” Doe No. 1 v. Burke, 91 A.3d 1031, 1043
(D.C. 2014). Section 16-5501 defines an “act in furtherance of the right of advocacy on issues of
public interest” to include “[a]ny written or oral statement made … [i]n connection with an issue
under consideration or review by [any governmental] body; or… [i]n a place open to the public
or a public forum in connection with an issue of public interest; … or [a]ny other expression or
expressive conduct that involves … communicating views to members of the public in
connection with an issue of public interest.” § 16-5501(1)(A)-(B).
Plaintiffs contend that Defendants have not satisfied their burden under the D.C. Anti-
SLAPP Act because (1) the Report “was an objective recitation of facts-not a work of advocacy,”
Nov. 15, 2019 Pls. Opp’n at 8, and (2) four of Plaintiffs’ defamation claims are based on
publications of the Report that “occurred in private-internal APA-only forums that were not open
or available.” Id. at 9. Both arguments are without merit.
(1) The Right of Advocacy
First, Plaintiffs argue that because “the APA engaged Sidley ‘to conduct an independent
review of whether there [was] any factual support for the assertion that APA engaged in
13
activity that would constitute collusion…’ to facilitate torture, and ‘the sole objective of the
review [was] to ascertain the truth about that allegation….” that the goal of the Report was
objectivity, not advocacy. Id. at 10.
This assertion relies on a narrow definition of the term advocacy. The public is interested
in facts as well as opinions, and whether or not Defendants Sidley Austin were originally hired to
collect facts, they provided factual information and related conclusions to the public through a
report about issues of public interest in the United States. Thus, the Report squarely fits within
the parameters of the D.C. Anti-SLAPP Act as it is “expressive conduct that involves …
communicating views to members of the public in connection with an issue of public interest,” §
16-5501(1)(B), and is a “written… statement made… [i]n a place open to the public or a public
forum in connection with an issue of public interest.” § 16-5501(1)(A)(ii).
Plaintiffs also contend that even if the Report is a work of advocacy, only Defendant
APA could claim the protections of the D.C. Anti-SLAPP Act because Defendants Sidley Austin
prepared the Report at the request of the APA and were not acting as advocates of their own
beliefs. Nov. 15, 2019 Pls. Opp’n at 16-17. Again, Plaintiffs are asking the Court to apply a
narrow definition of the term advocacy when no such restriction appears in the D.C. Anti-SLAPP
Act. Such a narrow application of the D.C. Anti-SLAPP Act would defeat the Act’s purpose to
protect speech. In any event, the Report could be construed as advocating for psychologists to
regulate their profession and delineate their ethical guidelines without military or governmental
agencies seeking to influence the process and for the APA to insure its independence.
(2) Public Forum
Second, Plaintiffs contend that Claims 1, 4, 5, and 9 of the Supplemental Complaint are
outside the scope of the D.C. Anti-SLAPP Act “because the publications [of Claims 1, 4, 5, and
14
9] were to private, non-public audiences.” Nov. 15, 2019 Pls. Opp’n at 13 (“Those four Claims
are based on…publications, all in private forums open only to the leadership of the APA….”).
However, § 16-5501(1) applies in the disjunctive either to statements “[i]n a place open to the
public or a public forum in connection with an issue of public interest; … or [a]ny other
expression or expressive conduct that involves … communicating views to members of the
public in connection with an issue of public interest.” (Emphasis added). Even if those four
Claims do not involve Defendants publishing the Report to the public at large, each Claim
involves either Defendant APA or Defendants Sidley Austin engaging in expression that
communicates information to members of the public within the meaning of the D.C. Anti-
SLAPP Act.
As for the remaining claims in the Supplemental Complaint, Plaintiffs do not contest that
related statements qualify as a “written or oral statement made…in a place open to the public or
a public forum in connection with an issue of public interest; … or any other expression or
expressive conduct that involves … communicating views to members of the public in
connection with an issue of public interest.” § 16-5501(1)(A)-(B).
(3) Issues of Public Interest
Third, it is evident that the Report discusses “issues of public interest,” a proposition that
Plaintiffs do not seem to challenge. As discussed above, the Report centers on two main issues:
(1) the role of psychologists in national security interrogations; and (2) whether APA officials
colluded with DoD officials to support the torture of detainees after September 11, 2001. It is
undeniable that extensive reporting, discussion and analysis of these issues in the media, in
government, in the courts, and in the press have been taking place for years. As such, those
developments place the topics discussed in the Report squarely within the category of matters
15
considered to be of public concern. Thus, it is clear that the Report addresses an “issue of public
interest” within the meaning of § 16-5501(3).
For all these reasons, the Defendants have satisfied the requirement to make a prima facie
showing that the claim at issue arises from an act in furtherance of the right of advocacy on
issues of public interest.
B. Public Official Designation
Whether a plaintiff is a public official is a question of law to be decided by the Court.
Rosenblatt v. Baer, 383 U.S. 75, 88 (1966). As the Supreme Court noted in Rosenblatt,
The “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. “Public official” cannot be thought to include all public employees. The position occupied by the official must be distinguished from the controversy in which he has become embroiled, for it is the former that must inherently invite public scrutiny.
Id. at 85-86.
Plaintiffs argue that they are private figures because Plaintiffs were retired from their
military service at the time the Report was published and were “mid-level officers whose
responsibility was to draft and follow through with policies and directives issued by their
superior, commanding officers.” Nov. 18, 2019 Pls. Opp’n at 65-68. These assertions misstate
relevant law and contradict statements made in the Plaintiffs’ Supplemental Complaint.
(1) Plaintiffs’ statuses as Public Officials did not terminate after their retirement for purposes of this defamation suit.
The passage of time does not automatically cause a public official to lose public official
status if the public official’s former role is still a matter of public interest, or if the alleged
defamatory statements address the public official’s past performance in that role. See Rosenblatt,
383 U.S. at 87 n.14 (concluding that plaintiff, former area supervisor, was a public official noting
16
“it is not seriously contended, and could not be, that the fact that [plaintiff] no longer supervised
the Area when the column appeared has significance here….[T]he management of the Area was
still a matter of lively public interest…and public interest in the way in which the prior
administration had done its task continued strong. The comment, if it referred to [plaintiff],
referred to his performance of duty as a county employee”); Crane v. Ariz. Republic, 972 F.2d
1511 (9th Cir. 1992)(affirming the district court’s decision that plaintiff, a former prosecutor,
was not a public official because “the article…addresses neither [plaintiff’s] performance of
official duties nor any misconduct engaged in while a prosecutor,” but concluding that plaintiff
should be considered a public official for portions of the article related to activities undertaken
while a prosecutor); Arnheiter v. Random House, Inc., 578 F.2d 804 (9th Cir. 1978)(concluding
that former commanding officer of a United States Navy vessel was a public official for a
defamation suit involving statements made in a book published after plaintiff was removed from
his position as “such a person holds a position that invites public scrutiny and discussion and fits
the description of a public official under New York Times”); Worrell-Payne v. Gannett Co., 49
Fed. Appx. 105, 107 n.1 (9th Cir. 2001)(affirming district court decision that plaintiff, former
executive director of the Boise City/Ada County Housing Authority, was a public official
“because management of the Authority…was ‘still a matter of lively public interest…and public
interest in the way in which the prior administration had done its task continued strong,’” despite
termination from employment and the passage of two years).5 Thus the relevant inquiry is not,
5 This application of the New York Times rule for public officials is in line with the current understanding of the passage of time as it relates to limited- purpose public figures. See Partington v. Bugliosi, 56 F.3d 1147, 1152 n.8 (9th Cir. 1995)(“The Supreme Court has specifically declined to address whether an individual’s status as a public figure can change over time…. However, it appears that every court of appeals that has specifically decided this question has concluded that the passage of time does not alter an individual’s status as a limited purpose public figure. See Street v. Nat’l Broad. Co., 645 F.2d 1227 (6th Cir. 1981), cert. dismissed,454 U.S. 1095 (1981); see also Contemporary Mission v. New York Times Co., 842 F.2d 612 (2d Cir. 1988), cert. denied, 488 U.S. 856 (1988); Wolston v. Reader's Digest Ass'n, Inc., 578 F.2d 427, 431 (D.C. Cir. 1978), rev’d on other grounds, 443
17
as Plaintiffs contend, centered only on a person’s status at the time of publication, but on whether
disputed comments relate to events that took place while the person was a public figure and those
events remained the subject of public concern.
Here, the Report clearly addresses Plaintiffs’ performances of their official duties in
matters of public interest. The Report’s narrative, as Plaintiffs contend, is that, “Plaintiffs…
‘colluded’ to block the APA from taking any effective steps to prevent psychologists’
involvement in abusive interrogations.” Supp. Compl. ¶ 5. Plaintiffs further assert that the Report
makes three primary allegations: “ensuring that the guidelines issued for psychologists involved
in the interrogation process were no more restrictive than ‘existing’ military guidelines…
preventing the APA from banning psychologists participating in national-security interrogations;
and…mishandling ethics complaints to protect national-security psychologists from censure.”
Id. ¶ 19. These conclusions directly relate to Plaintiffs’ former roles as Army Colonels and
psychologists and the actions they undertook in controversial events related to their specific
military positions. Moreover, at the time the Report was published, psychologists’ involvement
in interrogations was “still a matter of lively public interest…and public interest in the way in
which the prior administration had done its task continued strong.” Rosenblatt, 383 U.S. at 87
n.14.
(2) Plaintiffs Satisfy the Criteria for Public Officials established by the U.S. Supreme Court
Plaintiff Banks served as the Director of Psychological Applications for the United States
Army’s Special Operations Command where he “provided ethical as well as technical oversight
for all Army Special Operation Psychologists.” Supp. Compl. ¶ 39. Plaintiff Dunivin served as
U.S. 157 (1979); Brewer v. Memphis Publ’g Co., Inc., 626 F.2d 1238 (5th Cir. 1980), cert. denied, 452 U.S. 962 (1981); Time, Inc. v. Johnston, 448 F.2d 378, 381 (4th Cir. 1971).”)
18
Chief of the Department of Psychology at Walter Reed Army Medical Center and Walter Reed
National Military Medical Center where she “consulted with commanders in Guantanamo, Iraq,
and the Army Medical Command,” and “served in the Army Inspector General’s inspection of
detention facilities.” Id. ¶ 41. Plaintiff James served as Chief of the Department of Psychology
at Walter Reed Army Medical Center and Tripler Army Medical Center, and as Director of
Behavioral Science at Guantanamo and Abu Ghraib, Iraq. Id. ¶ 42. These positions comfortably
fit within the hierarchy of public officials as provided in Rosenblatt.
Furthermore, the Supplemental Complaint provides a plethora of examples demonstrating
Plaintiffs’ “substantial responsibility for or control over the conduct of governmental affairs.”
Rosenblatt, 383 U.S. at 88. Specifically, the Supplemental Complaints asserts as follows:
“The military Plaintiffs…became directly and energetically involved in drafting policies and implementing training and oversight….” Supp. Compl. ¶ 12
“The military…Plaintiffs then worked to ensure that the APA guidelines were drafted so that military psychologists could use them within the military….” Id. ¶ 13.
“The military Plaintiffs…were charged with drafting and implementing policies….” Id. ¶ 69.
“Given the role of Plaintiffs Banks and James in helping to put local policies in place, it is not a surprise that those policies…were incorporated by reference into Statement Four of the PENS Guidelines.” Id. ¶ 117.
“The Military Plaintiffs Took a Leading Role in Creating Policies and Procedures to Prevent Abusive Interrogations.” Supp. Compl. Heading 4 at 36.
“In the aftermath of the abuses at interrogation sites after 9/11…Plaintiffs…were called upon to help put in place policies….” Id. ¶ 122.
“[Plaintiff] Banks was ordered to work with the Army’s Inspector General to investigate and decide how to prevent future abuses.” Id. ¶ 123.
“[Plaintiff] James [was asked] to serve in Iraq, with the role of drafting policies and instituting procedures….” Id.
19
“[Plaintiff] Dunivin volunteered to play a similar role [to Dr. James in Iraq] at Guantanamo.” Id.
“[Plaintiff] Banks became an author of the Army Inspector General’s Report….and at the time of PENS, [Plaintiff] Banks was consulting to the Army on a revision to the Army Field Manual.” Id. ¶ 125.
“[Plaintiff] James…outline[d] the beginnings of a SOP to prevent abuses….While in Iraq [Plaintiff] James trained staff on appropriate interviewing techniques that were consistent with those documents.” Id. ¶ 127.
“[Plaintiff] Dunivin…was involved in drafting the Guantanamo SOP that instructed BSCTs to ensure interrogation policies were followed and to report violations.” Id. ¶ 129.
Accordingly, the Court concludes that the Plaintiffs, former Army Colonels, are public officials
for purposes of this defamation suit and must show that Defendants acted with actual malice to
promote their claims.
C. Likelihood of Success on the Merits
Once Defendants make a prima facie case, the burden shifts to Plaintiffs to offer evidence
that would permit a jury properly instructed on the applicable legal and constitutional standards
to reasonably find that Defendants are liable for defamation. See Mann, 150 A.3d at 1232. “The
precise question here, therefore, is whether a jury properly instructed on the law, including any
applicable heightened fault and proof requirements, could reasonably find for the claimant on the
evidence presented.” Id. at 1236.
(1) Republication
Count 11 of Plaintiffs’ Supplemental Complaint alleges,
On August 21, 2018, the General Counsel and Board of APA republished the [Report] on the APA website at a new URL. They directed Council members and others to the [Report] through an email to the Council listserv, which includes persons who are not Council members, and by publishing on the APA’s public website the Board minutes authorizing the republication. Those minutes contain a link to the [Report]. The website is accessible to the public, not only to APA members.
20
Supp. Compl. ¶ 524. Plaintiffs assert that these actions constitute a republication for the “simple
fact [that] the publications took place at separate times and reached different audiences. Nothing
more is necessary.” Nov. 15, 2019 Pls. Opp’n at 18. Defendants dispute Plaintiffs’
characterization of the August 2018 changes to the APA website and argue that the Report was
not republished. Mar. 21, 2019 APA Mot. at 11; Mar. 21, 2019 Sidley Austin Mot. at 2.
First, Defendants note that the August 2018 website change did not create a new URL for
the Report. Mar. 21, 2019 APA Mot. at 3; Mar. 21, 2019 Sidley Austin Mot. at 4. Rather, after
August 2018, the Report could no longer be accessed via its own landing page but only through a
link on the APA website’s Timeline page (“the Timeline”). Mar. 21, 2019 APA Mot. at 3; Mar.
21, 2019 Sidley Austin Mot. at 5. Prior to August 2018, “the Report could always be accessed
by a link to the Report from the Timeline.” Mar. 21, 2019 APA Mot., Ex. A Fredley Aff. ¶ 4.
Therefore, after the August 2018 changes, “[t]he link to the Report…[was] at the same place on
the Timeline as it was when it was originally posted to the APA website.” Mar. 21, 2019 APA
Mot. at 9.
Second, Defendants argue that they did not direct a new audience to the Report by
emailing and posting the meeting minutes approving the website change because the meeting
minutes contained a link to the Timeline only, not the Report. Mar. 21, 2019 APA Mot. at 4;
Mar. 21, 2019 Sidley Austin Mot. at 12. The Timeline contains approximately 170 links. Mar.
21, 2019 APA Mot. at 4.
Third, and finally, Defendants assert that adding to the Timeline links to four documents
commenting on the Report did not modify the substance of the Report. Mar. 21, 2019 APA Mot.
at 10, Ex. A Fredley Aff. ¶ 6; Mar. 21, 2019 Sidley Austin Mot. at 13.
21
The Court concludes that as a matter of law, the APA’s actions on August 21, 2018 do
not constitute republication. Because the Timeline always contained a link to the Report, the
record does not support Plaintiffs’ position that the “APA republished the [Report] on the APA
website at a new URL,” Supp. Compl. ¶ 524, and that “the Report was published on separate
occasions and on different locations.” Nov. 15, 2019 Pls. Opp’n at 21. Moreover, there is no
evidence that Defendant APA intended to, or actually did, reach a new audience.
Similarly, Plaintiffs’ contention that Defendant APA sought a new audience by emailing
its Council of Representatives exaggerates the available evidence. The record shows that the
email sent to the APA’s Council of Representatives contained only a link to the Timeline, a
webpage with over 170 links, and notified Council members that the motion to remove the
Report from its landing page was passed. Mar. 21, 2019 APA Mot. at 4. Also, the August 2018
meeting minutes posted on the APA’s website contains links to the Timeline, not the Report. Id.
In fact, the August 2018 meeting minutes consists of twenty two pages of information, most of
which does not relate to or reference the Report. Mar. 21, 2019 APA Mot., Ex. 1. Finally, there
was no modification, or revision, to the Report. The addition of links to the Timeline
commenting on the Report is insufficient to republish the Report as these additional links did not
link to the Report and did not appear on the same webpage as the Report. Mar. 21, 2019 APA
Mot. at 3; Mar. 21, 2019 Sidley Austin Mot. at 5. Accordingly, there was no republication of the
Report as a matter of law and Plaintiffs’ Count 11 must be dismissed.
(2) Actual Malice
The Plaintiffs must present clear and convincing evidence that Defendants acted with
actual malice given their status as public officials. Actual malice exists where a statement is
made “with knowledge that it was false or with reckless disregard of whether it was false or
22
not.’” Thompson v. Armstrong, 134 A.3d 305, 311 (D.C. 2016) (quoting New York Times Co.,
376 U.S. at 279-80).
The Plaintiffs received the opportunity to conduct targeted discovery prior to filing their
oppositions to the Defendants’ motions as permitted under D.C. Code § 16-5502(c)(2).
Specifically, on February 8, 2019, this Court granted in part Plaintiffs’ motion for limited
discovery to include the following information:
Depositions of Drs. Michael Honaker, Heather Kelly, and Stephen Soldz.6
Answers to the four interrogatories to Defendant APA served with the Complaint.
A mirror image copy of all electronic data contained on the personal computer and hard drive of Dr. Stephen Behnke retrieved by Defendants Sidley Austin as part of its investigation.
The witness interview notes or communications created during the Sidley Austininvestigation for the 18 witnesses from whom the Plaintiffs received affidavits.
Despite this discovery, Plaintiffs fail to proffer evidence that a reasonable jury could find
to be clear and convincing proof that Defendants knew that facts stated in, or reasonably implied
by, the Report were false or that they published the Report with reckless disregard of the falsity
of these stated or implied facts.
Nevertheless, Plaintiffs contend that several categories of information, when subjected to
“a holistic examination” and viewed in the aggregate, combine to provide “more than enough
evidence to demonstrate Defendants’ actual malice.” Nov. 18, 2019 Pls. Opp’n at 5 (citing
Tavoulares v. Piro, 817 F. 2d 762, 794 (D.C. Cir. 1987)).
The foundation for this argument rests with thirty five individual witness statements
found in Exhibit C, which is part of Plaintiffs’ Consolidated Opposition to Defendants’ First Set
6 This Court subsequently vacated the provision for depositions in an order dated September 25, 2019.
23
of Contested Special Motions to Dismiss filed March 21, 2019,7 under the District of Columbia
Anti-SLAPP Act, D.C. Code § 16-5002. The statements consist of thirty four affidavits from
different persons and a memorandum from Dr. L. Michael Honaker. See generally, Exhibit C.
In addition, five affidavits consist of declarations from current and former plaintiffs and two
individuals that Sidley Austin did not interview as part of the investigative process.8 Thus,
twenty eight statements relate to individuals interviewed during the investigation who are not or
who have not been plaintiffs in this case.
First, Plaintiffs argue that during their investigation, Defendants had documents and
government reports in their possession that contradicted the Report’s conclusions. Nov. 18, 2019
Pls. Opp’n at 21. However, Plaintiffs fail to explain whether the entities that issued those
governmental reports had access to the same documents, email exchanges and witnesses used as
sources for the Report. Similarly, it is unclear to what extent those reports were commissioned
with mandates comparable to the directive that APA provided to Sidley & Austin for the internal
review, focused on the same issues explored in that investigation or applied different ethical or
procedural rules in reaching their conclusions. Thus, the mere existence of those reports does
not support the claim that Defendants acted with malice in drafting the Report.
Similarly, Plaintiffs present affidavits of multiple witnesses contending that information
they provided was not included in the Report or disagreeing with how their declarations were
portrayed. When one considers the scope of the investigation, the number of witnesses and the
volume of materials reviewed, it is difficult to understand how omitting a comment here or an
opinion there would amount to malice. See, Affidavit of Susan Brandon in Support of Plaintiffs’
7 Defendants’ First Set of Contested Special Motions to Dismiss was filed October 13, 2017.8 Affiant Donna Beavers expressed disagreement with the Report’s conclusions, but was not interviewed. Affiant Arman Gungor is a Certified Computer Examiner who described metadata found and emails retrieved during his analysis of electronic data. See generally Exhibit C.
24
Memorandum in Opposition to Defendants’ Special Motion to Dismiss Under the D.C. Anti-
SLAPP Act, at 1 (“The Report is not an accurate characterization of my comments in the
interview”); Affidavit of Robert J. Sternberg in Support of Plaintiffs’ Memorandum in
Opposition to Defendants’ Special Motion to Dismiss Under the D.C. Anti-SLAPP Act, at 4
(“To this day, I believe that the Report seriously misrepresented what I said”); Affidavit of Harry
Matarazzo in Support of Plaintiffs’ Memorandum in Opposition to Defendants’ Special Motion
to Dismiss Under the D.C. Anti-SLAPP Act, at 2 (“Notably, certain written and verbal
information that Dr. Matarazzo provided was not present, while other information was set forth
in an equivocal manner”); and Affidavit of Scott Shumate in Support of Plaintiffs’ Memorandum
in Opposition to Defendants’ Special Motion to Dismiss Under the D.C. Anti-SLAPP Act, at 3
(“The Report’s description of my understanding of interrogations appears to be cherry-picked
from available information in order to portray me in a biased and misleading light”). Notably,
these comments and similar comments from other affiants address disagreements with the Report
about what a specific affiant said or did not say. These omissions and mischaracterizations, even
if true, do not support an inference that Defendants acted with malice with respect to specific
conclusions about the Plaintiffs found in the Report.
Next, Plaintiffs maintain that Defendants undertook the internal review process with a
preconceived agenda to specifically target the Plaintiffs in this case, relied on biased and
unreliable sources and purposely avoided the truth. Nov. 18, 2019 Pls. Opp’n at 21. Again, this
argument is rooted in declarations within attached affidavits that echo each other in tenor and
vocabulary. See Affidavit of Jennifer Bryson in Support of Plaintiffs’ Memorandum in
Opposition to Defendants’ Special Motion to Dismiss Under the D.C. Anti-SLAPP Act, at 2
(“During the interview, I was struck by a definite sense that the Sidley interviewer was targeting
25
Dr. Behnke in the service of a preconceived narrative…”); Affidavit of Lisa Callahan in Support
of Plaintiffs’ Memorandum in Opposition to Defendants’ Special Motion to Dismiss Under the
D.C. Anti-SLAPP Act, at 2 (“I was given the distinct impression that the Sidley independent
review was intended to find evidence that the Ethics Office staff had exercised undue influence
over the ethics adjudication process”); Affidavit of Armand Cerbone in Support of Plaintiffs’
Memorandum in Opposition to Defendants’ Special Motion to Dismiss Under the D.C. Anti-
SLAPP Act, at 1 (“During my interview, Ms. Carter questioned me about, among other things,
Dr. Behnke in a manner that evidenced a preconceived narrative …”); Affidavit of Robin
Deutsch in Support of Plaintiffs’ Memorandum in Opposition to Defendants’ Special Motion to
Dismiss Under the D.C. Anti-SLAPP Act, at 3 (“During my interview with Mr. Hoffman,
questions he posed left me with the distinct impression that he had a preconceived narrative and
had already concluded that … Dr. Stephen Behnke, had engaged in inappropriate behavior”);
Affidavit of Elizabeth Swenson in Support of Plaintiffs’ Memorandum in Opposition to
Defendants’ Special Motion to Dismiss Under the D.C. Anti-SLAPP Act, at 2 (“… it had been
my impression … that Sidley Austin interviewers had an agenda and a preconceived
narrative…”). Aside from these statements perhaps representing opinion testimony, it is not
possible to tell from this record where along the investigative process involving some 150
witnesses these specific interviews took place, and what information investigators had received
prior to the interviews leading them to focus their inquiry. Thus, the impressions of these
affiants, even if true, would not support a finding of malice.
Furthermore, Plaintiffs question the Defendants reliance on four allegedly biased
witnesses in reaching the Report’s conclusions. See Nov. 18, 2019 Pl. Opp’n at 45. Those
witnesses were Drs. Stephen Soldz, Nathaniel Raymond, Jean María Arrigo and Trudy Bond. Id.
26
at 45-46. However, those four individuals were only a fraction of the approximately 150
witnesses interviewed and 50,000 documents reviewed. The possibility that these witnesses
were biased does not suffice to establish malice. At best, the Plaintiffs have shown that
Defendants Sidley Austin received contradictory and diverse statements, opinions and
recollections during the investigation. Such inconsistencies are not uncommon in extensive
investigations and do not suffice to show that Defendants had subjective knowledge of the
Report’s falsity, or acted with reckless disregard for whether or not the statements in the Report
were false.
With respect to Plaintiffs’ argument that Defendants purposely avoided the truth, the
evidence proffered does not satisfy the clear and convincing evidence standard. Indeed, the
evidence that Plaintiffs describe is not the entirety of the information compiled during the
internal review and their argument ignores the length of the investigative process. Although the
record shows that Defendants Sidley Austin interviewed a handful of Plaintiffs’ critics, that fact
does not establish that Defendants Sidley Austin had “obvious reasons to doubt the veracity” of
these sources. See St. Amant, 390 U.S. at 732. Furthermore, Defendants Sidley Austin did not
“rely on a single, questionable source without fact-checking, interviewing additional witnesses,
or seeking independent support,” to avoid the truth and establish a predetermined narrative.
Talley v. Time, Inc., 923 F.3d 878, 904 (10th Cir. 2019) (citing Curtis Pub. Co. v. Butts, 388 U.S.
130, 157-58 (1967)); accord Harte-Hanks Commc’ns v. Connaughton, 491 U.S. 688, 692 (1989).
To the contrary, it is undisputed that Defendants Sidley Austin interviewed about 150 witnesses,
performed follow up interviews with 50 witnesses, and reviewed some 50,000 documents during
the course of their eight-month investigation. Sidley Austin Reply to Nov. 15, 2019 Opp’n at 25.
As such, the evidence that Plaintiffs present fails to show that Defendants Sidley Austin pursued
27
a preconceived outcome, relied on biased and unreliable sources that impacted the conclusions of
the investigation and purposely avoided the truth. Here, a reasonable jury properly instructed on
the law would be hard-pressed to find clear and convincing evidence of actual malice.
Additionally, Plaintiffs contend that the Defendants’ investigation departed from
accepted professional standards and that Defendants refused to retract the Report after
publication. Nov. 18, 2019 Pls. Opp’n at 21. Plaintiffs charge of improper investigation fails as
a “defamation plaintiffs cannot show actual malice in the abstract; they must demonstrate actual
malice in conjunction with a false defamatory statement.” See Tavoulareas, 817 F.2d at 794
(emphasis in original). Aside from stating their conclusions, the Plaintiffs fail to make this
necessary connection. Moreover, Plaintiffs fail to establish any duty on behalf of Defendants to
retract or correct the Report post publication, particularly after legal action related to the contents
of the report had been filed. In any event, the actual malice standard turns on whether
Defendants were subjectively aware that the statements in the Report were false or acted in
reckless disregard of their falsity, at the time the statements were made. It is a standard that
Plaintiffs have not satisfied. Therefore, even when combining the various arguments that
Plaintiffs advance, considering the totality of the record in this case, Plaintiffs fail to proffer clear
and convincing evidence that Defendants made any defamatory statements in the Report with
knowledge that a statement was false or with reckless disregard of its falsity. Thus, their claims
are not likely to succeed at trial.
Finally, it is important to point out a string of email communications that took place from
on or about March 7, 2006 to on or about July 2, 2007, which are appended as Exhibit C to the
Affidavit of Arman Gungor in Support of Plaintiffs’ Memorandum in Opposition to Defendants’
Special Motion to Dismiss Under the D.C. Anti-SLAPP Act. Mr. Gungor recovered these
28
undeleted emails from the Behnke hard drive that was provided in discovery. Id. ¶ 18. The
purpose of the communications was to coordinate responses to public discussions about APA
policies and to blunt criticisms related to treatment of detainees and interrogation practices.
Participants in these exchanges included current and former Plaintiffs Dr. Stephen Behnke, Dr.
Larry James and Dr. L. Morgan Banks, III, as well as affiants Dr. Michael Gelles and Dr. Robert
Fein. Curiously, the emails include phrases like “Eyes Only,” “Your eyes only,” “Please delete
after reading this,” and “Please review and destroy.” Since this correspondence was disclosed in
discovery which the Defendants provided, it is safe to assume that investigators reviewed and
considered the emails in reaching their conclusions.9
IV. CONCLUSION:
The D.C. Anti-SLAPP Act was enacted to protect the right of advocacy on issues of
public interest. The Act allows defamation suits involving statements about issues of public
interest to proceed, provided that the subjects of the alleged defamatory statement offer evidence
that they are likely to succeed on the merits. Plaintiffs have failed to provide such evidence.
Accordingly, this 11th day of March, 2020, it is ordered that:
1. Defendant American Psychological Association’s Contested Special Motion to Dismiss
Under the D.C. Anti-SLAPP Act D.C. Code § 16-5502 is GRANTED.
2. Defendants Sidley Austin LLP, Sidley Austin (DC) LLP, and David Hoffman’s
Contested Special Motion to Dismiss Under the District of Columbia Anti-SLAPP Act,
D.C. Code § 16-5502 is GRANTED.
9 In the alternative, assuming without deciding that Plaintiffs were private individuals instead of public officials for purposes of this defamation action, Plaintiffs have failed to proffer evidence in this record that in publishing the Report the Defendants “fail[ed] to observe an ordinary degree of care in ascertaining the truth of an assertion before publishing it to others.”Kendrick, 659 A.2d at 822.
29
3. Defendant American Psychological Association’s Contested Special Motion to Dismiss
Count 11 of the Supplemental Complaint Under the D.C. Anti-SLAPP Act, D.C. Code §
16-5502 is GRANTED.
4. Defendants Sidley Austin LLP, Sidley Austin (DC) LLP, and David Hoffman’s
Contested Special Motion to Dismiss Count 11 of the First Supplemental Complaint
Under the District of Columbia Anti-SLAPP Act D.C. Code § 16-5502 is GRANTED.
5. This case is dismissed with prejudice.
It is so ORDERED.
Honorable Hiram E. Puig-LugoAssociate Judge Signed in Chambers
Copies to:
Fara Kitton, Esq.John Williams, Esq.Counsel for Plaintiffs Morgan Banks, Debra Dunivin, and Larry James
Bonny Forrest, Esq.Counsel for Plaintiffs Morgan Banks, Debra Dunivin, and Larry James
Thomas A. Clare, Esq.Joseph R. Oliveri, Esq.Counsel for Plaintiffs Morgan Banks, Debra Dunivin, and Larry James
Karen Carr, Esq. Barbara Wahl, Esq.Counsel for Defendant American Psychological Association
Thomas Hentoff, Esq. John Villa, Esq. Counsel for Defendants David Hoffman, Sidley Austin, LLP, and Sidley Austin LLP, DC
1
SUPERIOR COURT FOR THE DISTRICT OF COLUMBIACivil Division
STEPHEN BEHNKE, et al., ))
v. ) 2017 CA 005989 B ) Judge Hiram E. Puig-Lugo
)DAVID D. HOFFMAN, et al., )
)
AMENDED ORDER
This matter comes before the Court on (1) Defendant American Psychological
Association’s (“APA’s”) Contested Special Motion to Dismiss Under the D.C. Anti-SLAPP Act
D.C. Code § 16-5502, filed October 13, 2017; (2) Defendants Sidley Austin LLP, Sidley Austin
(DC) LLP, and David Hoffman’s (collectively “Sidley Austin’s”) Contested Special Motion to
Dismiss Under the District of Columbia Anti-SLAPP Act, D.C. Code § 16-5502, filed October
13, 2017; (3) Defendant APA’s Contested Special Motion to Dismiss Count 11 of the
Supplemental Complaint Under the D.C. Anti-SLAPP Act, D.C. Code § 16-5502, filed March
21, 2019; and (4) Defendants Sidley Austin’s Contested Special Motion to Dismiss Count 11 of
the First Supplemental Complaint Under the District of Columbia Anti-SLAPP Act D.C. Code §
16-5502, filed March 21, 2019. On November 15, 2019, Plaintiffs filed a consolidated
Opposition to APA and Sidley Austin’s (collectively “Defendants’”) Second Set of Contested
Special Motions to Dismiss filed March 21, 2019. On November 18, 2019, Plaintiffs filed a
consolidated Opposition to Defendants’ First Set of Contested Special Motions to Dismiss filed
October 13, 2017. On December 13, 2019, Defendants filed Reply briefs in support of their
Special Motions to Dismiss. On February 21, 2019, the Court held a hearing on the parties’
Special Motions to Dismiss.
FiledD.C. Superior Court03/12/2020 09:52AMClerk of the Court
2
This case involves the Independent Review Report (“the Report”) that Defendant APA
commissioned Defendant Sidley Austin to perform and subsequently published on its website.
The Report addressed the ongoing national conversation about the role of psychologists in
national security interrogations and explored whether APA officials had colluded with the Bush
administration, CIA, or U.S. military officials to support the torture of persons detained after the
events of September 11, 2001. The Report reached various conclusions in that regard, including
that “key APA officials…colluded with important DoD officials to have APA issue loose, high-
level ethical guidelines that did not constrain DoD in any greater fashion than existing DoD
interrogation guidelines.” Report at 9. The Plaintiffs, who are three former Army Colonels,
disagree with the Report’s conclusions and have brought claims of defamation per se,
defamation by implication, and false light against the Defendants.1
To begin, it is important to note that Special Motions to Dismiss do not require this Court
to determine whether the information in the Report is accurate or inaccurate. The purpose of
such motions is not to determine whether a defendant actually committed the tort of defamation,
but “whether the defendant is entitled to immunity from trial.” See Competitive Enter. Inst. v.
Mann, 150 A.3d 1213, 1230 (D.C. 2016). Thus, the role of the court is to determine whether or
not the motion to dismiss should be granted, when all statutory requirements are satisfied, as a
matter related to issues that concern public participation. To that end, a court must determine
whether a defendant has made a prima facie case that the D.C. Anti-SLAPP Act is applicable,
and if so, whether a plaintiff has shown that a defendant either knew that contested statements
were false or acted with reckless disregard of their falsity. Here, the amended complaint also
raises concerns about the legal implications of an alleged subsequent republication.
1 Two other Plaintiffs who were APA officials have been referred to arbitration consistent with their employment contracts with the APA. Those former Plaintifs are Dr. Stephen Benhke and Dr. Russell Newman.
3
The Court has considered the parties’ pleadings, the relevant case and statutory law, and
the entire record. For the following reasons, the Defendants’ four Special Motions to Dismiss
under the D.C. Anti-SLAPP Act, D.C. Code §§ 16-5501 to 5505 are granted.
I. BACKGROUND:
On August 28, 2017, Plaintiffs filed a Complaint against Defendants asserting ten counts
of defamation per se, one count of defamation by implication, and one count of false light. On
February 4, 2019, Plaintiffs filed a Supplemental Complaint adding an additional count of
defamation per se.2
The Plaintiffs are three individuals who served as military psychologists and retired as
Army Colonels. Plaintiff Dr. L. Morgan Banks, III (“Plaintiff Banks”) served as the Director of
Psychological Applications for the United States Army’s Special Operations Command. Supp.
Compl. ¶ 39. In that role, Dr. Banks “provided ethical as well as technical oversight for all Army
Special Operation Psychologists.” Id. For her part, Plaintiff Dr. Debra L. Dunivin (“Plaintiff
Dunivin”) served as Chief of the Departments of Psychology at Walter Reed Army Medical
Center and Walter Reed National Military Medical Center, where she “consulted with
commanders in Guantanamo, Iraq, and the Army Medical Command.” Id. ¶ 41. In addition, Dr.
Dunivin “served in the Army Inspector General’s inspection of detention facilities.” Id. Finally,
Plaintiff Dr. Larry C. James (“Plaintiff James”) served as Chief of the Department of Psychology
at Walter Reed Army Medical Center and Tripler Army Medical Center, and as Director of
Behavioral Science at Guantanamo and Abu Ghraib, Iraq. Id. ¶ 42.
The Defendants are (1) the APA, a Washington, D.C. based non-profit professional
organization for psychologists, id. ¶ 48, (2) David Hoffman, a partner at Sidley Austin LLP, id. ¶
2 The defamation per se count added in the Supplemental Complaint appears as Count 11 and is the subject of two of the four Special Motions to Dismiss.
4
46, (3) Sidley Austin LLP, a law firm comprised of a group of limited liability partnerships, id. ¶
47, and (4) Sidley Austin (DC) LLP. Id.
After September 11, 2001, reports of detainee abuse, the use of enhanced interrogation
techniques and the role of psychologists in those interrogations became a topic of public
scrutiny. Supp. Compl. ¶ 70; Oct. 13, 2017 Sidley Austin Mot. at 4. In 2004, as media coverage
of this topic continued to increase, the New York Times published an article about the role that
psychologists played in enhanced interrogations. Supp. Compl. ¶ 70; Oct. 13, 2017 Sidley
Austin Mot. at 4. In response to the New York Times article, the APA established the PENS3
Task Force “to explore the ethical dimensions of psychology’s involvement and the use of
psychology in national security-related investigations.” Supp. Compl. ¶ 71. Plaintiffs Banks and
James were members of the PENS Task Force. Id. ¶ 73. Plaintiff Dunivin was not a member of
the PENS Task Force but made recommendations to the APA about who should be selected to
serve on the task force. Id. ¶ 45. In the end, the PENS Task Force did not ban psychologists
from assisting in interrogations. Oct. 13, 2017 Sidley Austin Mot. at 5. Rather, the PENS Task
Force drafted twelve statements framing “ethical guidelines for psychologists involved in
interrogations.” Oct. 13, 2017 Sidley Austin Mot. at 5; see also Supp. Compl. ¶ 75. The APA
Board adopted these statements on July 1, 2005. Supp. Compl. ¶ 77.
Nine years after the PENS Task Force completed its work, New York Times Reporter
James Risen published the book titled Pay Any Price. Oct. 13, 2017 Sidley Austin Mot. at 8. In
his book, Risen claimed that the “APA colluded with the U.S. government to support torture,
including that the outcome of the PENS Task Force was a result of collusion between APA and
the Government.” Oct. 13, 2017 Sidley Austin Mot. at 8 (citing Compl. ¶¶ 2, 3). In response to
the allegations, in 2014 the APA retained the law firm Sidley Austin to conduct an independent
3 PENS stands for Psychological Ethics and National Security. Supp. Compl. ¶ 72.
5
review into Risen’s contentions that the APA colluded with the government to support torture.
Oct. 13, 2017 Sidley Austin Mot. at 1.
The investigation spanned more than eight months, interviewed approximately 150
individuals, and studied more than 50,000 documents as part of the independent review. Id. at 8.
It resulted in a report that consists of 541 pages and 7,600 pages of exhibits. Oct. 13, 2017 Sidley
Austin Mot. at 8; Oct. 13, 2017 APA Mot. at 4. Sidley Austin provided the Report to the APA in
July 2015. Oct. 13, 2017 Sidley Austin Mot. at 8. On July 10, 2015, a leaked copy of the Report
was published on The New York Times’ website. Oct. 13, 2017 APA Mot. at 4. On that day, the
APA published the Report on its website. Id. Two months later, on September 4, 2015, a revised
version of the Report was posted on the APA’s website. Nov. 15, 2019 Pls. Opp’n at 3.
The Report identified Plaintiff Banks as “the key DoD official [with whom the APA
Ethics Director] partnered with…,” and Plaintiff Dunivin as “the other DoD official who was
significantly involved in the confidential coordination effort….” R. at 12-13. The Report
reached several conclusions including:
“[K]ey APA officials, principally the APA Ethics Director joined and supported at times by other APA officials, colluded with important DoD officials to have APA issue loose, high-level ethical guidelines that did not constrain DoD in any greater fashion thanexisting DoD interrogation guidelines.” Id. at 9.
“[I]n the three years following the adoption of the 2005 PENS Task Force Report as APA policy, APA officials engaged in a pattern of secret collaboration with DoD officials to defeat efforts by the APA Council of Representatives to introduce and pass resolutions that would have definitely prohibited psychologists from participating in interrogations at Guantanamo Bay and other U.S. detention centers abroad. The principal APA official involved in these efforts was once again the APA Ethics Director, who effectively formed an undisclosed joint venture with a small number of DoD officials to ensure that APA’s statements, and actions fell squarely in line with DoD’s goals and preferences.” Id.
“We did not find evidence to support the conclusion that APA officials actually knew about the existence of an interrogation program using ‘enhanced interrogation techniques.’” Id.
6
Ethics complaints were mishandled to protect national-security psychologists from censure. Id. at 10.
Plaintiffs allege that the Report contains false and defamatory statements that “destroyed
their reputations and careers.” Nov. 18, 2019 Pls. Opp’n at 2. In response to Plaintiffs’ initial
and supplemental complaints, Defendants filed four Special Motions to Dismiss under the D.C.
Anti-SLAPP Act.
II. CHOICE OF LAW:
As a threshold matter, the Plaintiffs argue that all four Special Motions to Dismiss must
be denied because the Illinois Anti-SLAPP Act, not the D.C. Anti-SLAPP Act, applies to this
case. Nov. 18, 2019 Pls. Opp’n at 73-82. The parties agree that there is a conflict between the
Illinois Anti-SLAPP Act and the D.C. Anti-SLAPP Act. See Nov. 18, 2019 Pls. Opp’n at 75;
Sidley Austin Reply to Pls. Nov. 18, 2019 Opp’n at 40.
Whenever a dispute arises about the applicable choice of law, the D.C. Court of Appeals
uses “the governmental interests analysis” to resolve the conflict. Hercules & Co. v. Shama
Rest., 556 A.2d 31, 40 (D.C. 1989)(citing Kaiser-Georgetown Cmty. v. Stutsman, 491 A.2d 502,
509 (D.C. 1985)). Under this approach, “the choice of law turns on which jurisdiction has ‘the
most significant relationship to the dispute,’ and ‘which jurisdiction’s policy would be more
advanced’ by applying its law.” USA Waste of Md., Inc. v. Love, 954 A.2d 1027, 1031 (D.C.
2008). When applying this standard, the Court of Appeals has relied on the four factors listed in
the Restatement (Second) of Conflicts of Laws § 145:
a) “the place where the injury occurred;
b) the place where the conduct causing the injury occurred;
c) the domicile, residence, nationality, place of incorporation and place of business of
the parties; and
7
d) the place where the relationship is centered.”
District of Columbia v. Coleman, 667 A.2d 811, 816 (D.C. 1995) (citation omitted).
Based on these factors as applied to the controversy here, the Court concludes that the
governmental interests of the District of Columbia outweigh the governmental interests of the
State of Illinois, because the District of Columbia is both the jurisdiction with the most
significant relationship to the dispute and with the greater interest in the outcome.
First, the injuries identified in the Supplemental Complaint occurred primarily in the
District of Columbia. Notably, Plaintiffs’ Supplemental Complaint states the following:
“[T]he false and defamatory statements made by Defendants about Plaintiffs were intentionally published and republished in the District of Columbia by each of the Defendants.” Supp. Compl. ¶ 60.
“As a result of that circulation, Plaintiffs were all injured by the defamatory statements in the District of Columbia….” Id.
“The publications and republications of the defamatory materials were widely circulated in the District of Columbia by each of the Defendants.” Id. ¶ 61.
Second, the Supplemental Complaint stems from alleged defamatory statements made in
the Report that were later published on the APA’s website. The Plaintiffs stress that Defendant
Hoffman drafted the report in Illinois, but ignore the role that attorneys from Sidley Austin’s DC
office played in the process. Indeed, it is noteworthy that Sidley Austin’s DC office is a
defendant in this case and that the Report lists several attorneys from that office among its
authors. See Sidley Austin Reply to Pls. Nov. 18, 2019 Opp’n at 42-43. Moreover, it was the
APA, an organization based in Washington, D.C., that hired Defendant Sidley Austin to conduct
an investigation into the actions of its employees, and where the principal publication occurred.
Supp. Compl. ¶ 60. Therefore, the District of Columbia is the primary place where the conduct
8
causing the injury occurred and possesses a stronger interest in addressing the consequences of
speech made within its borders.
Third, the domicile, residence, place of incorporation and place of business of the parties
favor applying the laws of the District of Columbia and not the laws of the State of Illinois.
While none of the Plaintiffs reside in Illinois, two of the four Defendants are located in the
District of Columbia.4
Fourth, the relationship between the parties is centered in the District of Columbia despite
the Plaintiffs’ claim that an engagement letter between the Defendants identifies the laws of
Illinois as the norms applicable to disputes between them. Nov. 18, 2019 Pls. Opp’n at 79. The
Plaintiffs were not parties to the engagement letter between the Defendants. There is no
indication in the letter that Defendants intended to apply the provision about the laws of Illinois
to third parties. Thus, the retainer agreement is irrelevant to this lawsuit, which is unrelated to
any dispute between the signatory to the letter. Moreover, the relationship between the Plaintiffs
and the APA is centered in the District of Columbia. Plaintiffs James and Dunivin are former
members of APA’s governing council, Sidley Austin Reply to Pls. Nov. 18, 2019 Opp’n at 42-
43, and Plaintiffs James and Banks were members of the PENS Task Force. Supp. Compl. ¶ 73.
Finally, the Plaintiffs relationship with Defendants Sidley Austin (DC) is based solely on a report
which was published and largely prepared in the District of Columbia.
Therefore, after reviewing the four pertinent factors, the Court finds that the
governmental interests of the District of Columbia outweigh the minimal governmental interests
of the State of Illinois. As the Plaintiffs recognize, “the jurisdiction with the most significant
4 APA’s principal place of business and place of incorporation is the District of Columbia. Supp. Compl. ¶ 60. Sidley Austin (DC) LLP’s principal place of business is the District of Columbia. Id. ¶ 47. Sidley Austin LLP’s principal place of business is Illinois. Id. David Hoffman lives in Illinois. Id. ¶ 46. Plaintiff Banks lives in North Carolina. Id. ¶ 39. Plaintiff Dunivin lives in California. Id. ¶ 41. Plaintiff James lives in Ohio. Id. ¶ 42.
9
relationship to the dispute… [is] presumptively…the jurisdiction whose policy would be more
advanced by application of its law.” Nov. 18, 2019 Pls. Opp’n at 76 (quoting Pietrangelo v.
Wilmer Cutler Pickering Hale & Dorr, LLP, 68 A.3d 697, 714 (D.C. 2013)). Here, that
jurisdiction is the District of Columbia.
III. LEGAL STANDARDS:
A. The D.C. Anti-SLAPP Act
“A ‘SLAPP’ (strategic lawsuit against public participation) is an action ‘filed by one side
of a political or public policy debate aimed to punish or prevent the expression of opposing
points of view.’” Mann, 150 A.3d at 1226 (quoting legislative history). The Anti-SLAPP Act
tries “to deter SLAPPs by ‘extend[ing] substantive rights to defendants in a SLAPP, providing
them with the ability to file a special motion to dismiss that must be heard expeditiously by the
court.’” Id. at 1235 (quoting legislative history). “Consistent with the Anti-SLAPP Act’s
purpose to deter meritless claims filed to harass the defendant for exercising First Amendment
rights, true SLAPPs can be screened out quickly by requiring the plaintiff to present her evidence
for judicial evaluation of its legal sufficiency early in the litigation.” Id. at 1239.
“Under the District’s Anti-SLAPP Act, the party filing a special motion to dismiss must
first show entitlement to the protections of the Act by ‘mak[ing] a prima facie showing that the
claim at issue arises from an act in furtherance of the right of advocacy on issues of public
interest.’” Id. at 1227 (quoting D.C. Code § 16-5502(b)).
“Once that prima facie showing is made, the burden shifts to the nonmoving party,
usually the plaintiff, who must ‘demonstrate[] that the claim is likely to succeed on the merits.’”
Id. at 1227 (quoting § 16-5502(b)). “[O]nce the burden has shifted to the claimant, the statute
requires more than mere reliance on allegations in the complaint, and mandates the production or
10
proffer of evidence that supports the claim.” Id. at 1233. “[I]n considering a special motion to
dismiss, the court evaluates the likely success of the claim by asking whether a jury properly
instructed on the applicable legal and constitutional standards could reasonably find that the
claim is supported in light of the evidence that has been produced or proffered in connection with
the motion.” Id. at 1232. “This standard achieves the Anti-SLAPP Act’s goal of weeding out
meritless litigation by ensuring early judicial review of the legal sufficiency of the evidence,
consistent with First Amendment principles, while preserving the claimant’s constitutional right
to a jury trial.” Id. at 1232-33.
“If the plaintiff cannot meet that burden [to establish a likelihood of success], the motion
to dismiss must be granted, and the litigation is brought to a speedy end.” Id. at 1227. As such,
Section 16-5502(d) requires the Court to hold an “expedited hearing” on the motion and to issue
a ruling “as soon as practicable after the hearing.” Finally, Section 16-5502(d) provides, “If the
special motion to dismiss is granted, dismissal shall be with prejudice.”
B. Defamation
“To succeed on a claim for defamation, a plaintiff must prove (1) that the defendant made
a false and defamatory statement concerning the plaintiff; (2) that the defendant published the
statement without privilege to a third party; (3) that the defendant’s fault in publishing the
statement met the requisite standard; and (4) either that the statement was actionable as a matter
of law irrespective of special harm or that its publication caused the plaintiff special harm.”
Mann, 150 A.3d at 1240 (quotation and brackets omitted).
In defamation cases that rely on statements made about public officials, plaintiffs must
present clear and convincing evidence that a defendant acted with actual malice. Phillips v.
Evening Star Newspaper Co., 424 A.2d 78, 84 (D.C. 1980). “A plaintiff may prove actual
11
malice by showing that the defendant either (1) had subjective knowledge of the statement’s
falsity, or (2) acted with reckless disregard for whether or not the statement was false.” Mann,
150 A.3d at 1252 (quotation omitted); see New York Times v. Sullivan, 376 U.S. 254, 280-81
(1964). “The ‘reckless disregard’ measure requires a showing higher than mere negligence; the
plaintiff must prove that ‘the defendant in fact entertained serious doubts as to the truth of [the]
publication.’” Mann, 150 A.3d at 1252 (quoting St. Amant v. Thompson, 390 U.S. 727, 731
(1968)). In comparison to the standard used for statements about public officials, the standard of
care for defamation of private individuals is that of negligence. See Kendrick v. Fox Television,
659 A.2d 814, 821 (D.C. 1995).
C. Republication
Whether the publisher of a defamatory statement may be liable for republication depends
on whether the publisher “edits and retransmits the defamatory material or redistributes the
material with the goal of reaching a new audience.” See Eramo v. Rolling Stone, LLC, 209 F.
Supp. 3d 862, 880 (W.D. Va. 2016)(internal citations omitted). “In the context of internet
articles…courts have held that ‘a statement on a website is not republished unless the statement
itself is substantively altered or added to, or the website is directed to a new audience.’” Id.
(internal citations omitted) (emphasis added). Thus, the relevant inquiry focuses on whether
there has been a change in the content of the defamatory statement or whether the publisher
actively sought a new audience.
IV. ANALYSIS:
Plaintiffs advance three arguments to counter the Special Motions to Dismiss filed here.
First, Plaintiffs argue that Defendants failed to make a prima facie case under the D.C. Anti-
SLAPP Act that the Plaintiffs’ claims address an act in furtherance of the right of advocacy on
12
issues of public interest. Second, Plaintiffs contend that they are private figures, not public
officials, and that negligence is the appropriate standard to evaluate their claims. Finally,
Plaintiffs maintain that they have shown they are likely to succeed on the merits of their
defamation and false light claims.
The Court will address each argument in turn.
A. Prima Facie Showing
The D.C. Anti-SLAPP Act requires that defendants make “a prima facie showing that the
claim at issue arises from an act in furtherance of the right of advocacy on issues of public
interest.” § 16-5502(b). This burden is “not onerous.” Doe No. 1 v. Burke, 91 A.3d 1031, 1043
(D.C. 2014). Section 16-5501 defines an “act in furtherance of the right of advocacy on issues of
public interest” to include “[a]ny written or oral statement made … [i]n connection with an issue
under consideration or review by [any governmental] body; or… [i]n a place open to the public
or a public forum in connection with an issue of public interest; … or [a]ny other expression or
expressive conduct that involves … communicating views to members of the public in
connection with an issue of public interest.” § 16-5501(1)(A)-(B).
Plaintiffs contend that Defendants have not satisfied their burden under the D.C. Anti-
SLAPP Act because (1) the Report “was an objective recitation of facts-not a work of advocacy,”
Nov. 15, 2019 Pls. Opp’n at 8, and (2) four of Plaintiffs’ defamation claims are based on
publications of the Report that “occurred in private-internal APA-only forums that were not open
or available.” Id. at 9. Both arguments are without merit.
(1) The Right of Advocacy
First, Plaintiffs argue that because “the APA engaged Sidley ‘to conduct an independent
review of whether there [was] any factual support for the assertion that APA engaged in
13
activity that would constitute collusion…’ to facilitate torture, and ‘the sole objective of the
review [was] to ascertain the truth about that allegation….” that the goal of the Report was
objectivity, not advocacy. Id. at 10.
This assertion relies on a narrow definition of the term advocacy. The public is interested
in facts as well as opinions, and whether or not Defendants Sidley Austin were originally hired to
collect facts, they provided factual information and related conclusions to the public through a
report about issues of public interest in the United States. Thus, the Report squarely fits within
the parameters of the D.C. Anti-SLAPP Act as it is “expressive conduct that involves …
communicating views to members of the public in connection with an issue of public interest,” §
16-5501(1)(B), and is a “written… statement made… [i]n a place open to the public or a public
forum in connection with an issue of public interest.” § 16-5501(1)(A)(ii).
Plaintiffs also contend that even if the Report is a work of advocacy, only Defendant
APA could claim the protections of the D.C. Anti-SLAPP Act because Defendants Sidley Austin
prepared the Report at the request of the APA and were not acting as advocates of their own
beliefs. Nov. 15, 2019 Pls. Opp’n at 16-17. Again, Plaintiffs are asking the Court to apply a
narrow definition of the term advocacy when no such restriction appears in the D.C. Anti-SLAPP
Act. Such a narrow application of the D.C. Anti-SLAPP Act would defeat the Act’s purpose to
protect speech. In any event, the Report could be construed as advocating for psychologists to
regulate their profession and delineate their ethical guidelines without military or governmental
agencies seeking to influence the process and for the APA to insure its independence.
(2) Public Forum
Second, Plaintiffs contend that Claims 1, 4, 5, and 9 of the Supplemental Complaint are
outside the scope of the D.C. Anti-SLAPP Act “because the publications [of Claims 1, 4, 5, and
14
9] were to private, non-public audiences.” Nov. 15, 2019 Pls. Opp’n at 13 (“Those four Claims
are based on…publications, all in private forums open only to the leadership of the APA….”).
However, § 16-5501(1) applies in the disjunctive either to statements “[i]n a place open to the
public or a public forum in connection with an issue of public interest; … or [a]ny other
expression or expressive conduct that involves … communicating views to members of the
public in connection with an issue of public interest.” (Emphasis added). Even if those four
Claims do not involve Defendants publishing the Report to the public at large, each Claim
involves either Defendant APA or Defendants Sidley Austin engaging in expression that
communicates information to members of the public within the meaning of the D.C. Anti-
SLAPP Act.
As for the remaining claims in the Supplemental Complaint, Plaintiffs do not contest that
related statements qualify as a “written or oral statement made…in a place open to the public or
a public forum in connection with an issue of public interest; … or any other expression or
expressive conduct that involves … communicating views to members of the public in
connection with an issue of public interest.” § 16-5501(1)(A)-(B).
(3) Issues of Public Interest
Third, it is evident that the Report discusses “issues of public interest,” a proposition that
Plaintiffs do not seem to challenge. As discussed above, the Report centers on two main issues:
(1) the role of psychologists in national security interrogations; and (2) whether APA officials
colluded with DoD officials to support the torture of detainees after September 11, 2001. It is
undeniable that extensive reporting, discussion and analysis of these issues in the media, in
government, in the courts, and in the press have been taking place for years. As such, those
developments place the topics discussed in the Report squarely within the category of matters
15
considered to be of public concern. Thus, it is clear that the Report addresses an “issue of public
interest” within the meaning of § 16-5501(3).
For all these reasons, the Defendants have satisfied the requirement to make a prima facie
showing that the claim at issue arises from an act in furtherance of the right of advocacy on
issues of public interest.
B. Public Official Designation
Whether a plaintiff is a public official is a question of law to be decided by the Court.
Rosenblatt v. Baer, 383 U.S. 75, 88 (1966). As the Supreme Court noted in Rosenblatt,
The “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. “Public official” cannot be thought to include all public employees. The position occupied by the official must be distinguished from the controversy in which he has become embroiled, for it is the former that must inherently invite public scrutiny.
Id. at 85-86.
Plaintiffs argue that they are private figures because Plaintiffs were retired from their
military service at the time the Report was published and were “mid-level officers whose
responsibility was to draft and follow through with policies and directives issued by their
superior, commanding officers.” Nov. 18, 2019 Pls. Opp’n at 65-68. These assertions misstate
relevant law and contradict statements made in the Plaintiffs’ Supplemental Complaint.
(1) Plaintiffs’ statuses as Public Officials did not terminate after their retirement for purposes of this defamation suit.
The passage of time does not automatically cause a public official to lose public official
status if the public official’s former role is still a matter of public interest, or if the alleged
defamatory statements address the public official’s past performance in that role. See Rosenblatt,
383 U.S. at 87 n.14 (concluding that plaintiff, former area supervisor, was a public official noting
16
“it is not seriously contended, and could not be, that the fact that [plaintiff] no longer supervised
the Area when the column appeared has significance here….[T]he management of the Area was
still a matter of lively public interest…and public interest in the way in which the prior
administration had done its task continued strong. The comment, if it referred to [plaintiff],
referred to his performance of duty as a county employee”); Crane v. Ariz. Republic, 972 F.2d
1511 (9th Cir. 1992)(affirming the district court’s decision that plaintiff, a former prosecutor,
was not a public official because “the article…addresses neither [plaintiff’s] performance of
official duties nor any misconduct engaged in while a prosecutor,” but concluding that plaintiff
should be considered a public official for portions of the article related to activities undertaken
while a prosecutor); Arnheiter v. Random House, Inc., 578 F.2d 804 (9th Cir. 1978)(concluding
that former commanding officer of a United States Navy vessel was a public official for a
defamation suit involving statements made in a book published after plaintiff was removed from
his position as “such a person holds a position that invites public scrutiny and discussion and fits
the description of a public official under New York Times”); Worrell-Payne v. Gannett Co., 49
Fed. Appx. 105, 107 n.1 (9th Cir. 2001)(affirming district court decision that plaintiff, former
executive director of the Boise City/Ada County Housing Authority, was a public official
“because management of the Authority…was ‘still a matter of lively public interest…and public
interest in the way in which the prior administration had done its task continued strong,’” despite
termination from employment and the passage of two years).5 Thus the relevant inquiry is not,
5 This application of the New York Times rule for public officials is in line with the current understanding of the passage of time as it relates to limited- purpose public figures. See Partington v. Bugliosi, 56 F.3d 1147, 1152 n.8 (9th Cir. 1995)(“The Supreme Court has specifically declined to address whether an individual’s status as a public figure can change over time…. However, it appears that every court of appeals that has specifically decided this question has concluded that the passage of time does not alter an individual’s status as a limited purpose public figure. See Street v. Nat’l Broad. Co., 645 F.2d 1227 (6th Cir. 1981), cert. dismissed,454 U.S. 1095 (1981); see also Contemporary Mission v. New York Times Co., 842 F.2d 612 (2d Cir. 1988), cert. denied, 488 U.S. 856 (1988); Wolston v. Reader's Digest Ass'n, Inc., 578 F.2d 427, 431 (D.C. Cir. 1978), rev’d on other grounds, 443
17
as Plaintiffs contend, centered only on a person’s status at the time of publication, but on whether
disputed comments relate to events that took place while the person was a public figure and those
events remained the subject of public concern.
Here, the Report clearly addresses Plaintiffs’ performances of their official duties in
matters of public interest. The Report’s narrative, as Plaintiffs contend, is that, “Plaintiffs…
‘colluded’ to block the APA from taking any effective steps to prevent psychologists’
involvement in abusive interrogations.” Supp. Compl. ¶ 5. Plaintiffs further assert that the Report
makes three primary allegations: “ensuring that the guidelines issued for psychologists involved
in the interrogation process were no more restrictive than ‘existing’ military guidelines…
preventing the APA from banning psychologists participating in national-security interrogations;
and…mishandling ethics complaints to protect national-security psychologists from censure.”
Id. ¶ 19. These conclusions directly relate to Plaintiffs’ former roles as Army Colonels and
psychologists and the actions they undertook in controversial events related to their specific
military positions. Moreover, at the time the Report was published, psychologists’ involvement
in interrogations was “still a matter of lively public interest…and public interest in the way in
which the prior administration had done its task continued strong.” Rosenblatt, 383 U.S. at 87
n.14.
(2) Plaintiffs Satisfy the Criteria for Public Officials established by the U.S. Supreme Court
Plaintiff Banks served as the Director of Psychological Applications for the United States
Army’s Special Operations Command where he “provided ethical as well as technical oversight
for all Army Special Operation Psychologists.” Supp. Compl. ¶ 39. Plaintiff Dunivin served as
U.S. 157 (1979); Brewer v. Memphis Publ’g Co., Inc., 626 F.2d 1238 (5th Cir. 1980), cert. denied, 452 U.S. 962 (1981); Time, Inc. v. Johnston, 448 F.2d 378, 381 (4th Cir. 1971).”)
18
Chief of the Department of Psychology at Walter Reed Army Medical Center and Walter Reed
National Military Medical Center where she “consulted with commanders in Guantanamo, Iraq,
and the Army Medical Command,” and “served in the Army Inspector General’s inspection of
detention facilities.” Id. ¶ 41. Plaintiff James served as Chief of the Department of Psychology
at Walter Reed Army Medical Center and Tripler Army Medical Center, and as Director of
Behavioral Science at Guantanamo and Abu Ghraib, Iraq. Id. ¶ 42. These positions comfortably
fit within the hierarchy of public officials as provided in Rosenblatt.
Furthermore, the Supplemental Complaint provides a plethora of examples demonstrating
Plaintiffs’ “substantial responsibility for or control over the conduct of governmental affairs.”
Rosenblatt, 383 U.S. at 88. Specifically, the Supplemental Complaints asserts as follows:
“The military Plaintiffs…became directly and energetically involved in drafting policies and implementing training and oversight….” Supp. Compl. ¶ 12
“The military…Plaintiffs then worked to ensure that the APA guidelines were drafted so that military psychologists could use them within the military….” Id. ¶ 13.
“The military Plaintiffs…were charged with drafting and implementing policies….” Id. ¶ 69.
“Given the role of Plaintiffs Banks and James in helping to put local policies in place, it is not a surprise that those policies…were incorporated by reference into Statement Four of the PENS Guidelines.” Id. ¶ 117.
“The Military Plaintiffs Took a Leading Role in Creating Policies and Procedures to Prevent Abusive Interrogations.” Supp. Compl. Heading 4 at 36.
“In the aftermath of the abuses at interrogation sites after 9/11…Plaintiffs…were called upon to help put in place policies….” Id. ¶ 122.
“[Plaintiff] Banks was ordered to work with the Army’s Inspector General to investigate and decide how to prevent future abuses.” Id. ¶ 123.
“[Plaintiff] James [was asked] to serve in Iraq, with the role of drafting policies and instituting procedures….” Id.
19
“[Plaintiff] Dunivin volunteered to play a similar role [to Dr. James in Iraq] at Guantanamo.” Id.
“[Plaintiff] Banks became an author of the Army Inspector General’s Report….and at the time of PENS, [Plaintiff] Banks was consulting to the Army on a revision to the Army Field Manual.” Id. ¶ 125.
“[Plaintiff] James…outline[d] the beginnings of a SOP to prevent abuses….While in Iraq [Plaintiff] James trained staff on appropriate interviewing techniques that were consistent with those documents.” Id. ¶ 127.
“[Plaintiff] Dunivin…was involved in drafting the Guantanamo SOP that instructed BSCTs to ensure interrogation policies were followed and to report violations.” Id. ¶ 129.
Accordingly, the Court concludes that the Plaintiffs, former Army Colonels, are public officials
for purposes of this defamation suit and must show that Defendants acted with actual malice to
promote their claims.
C. Likelihood of Success on the Merits
Once Defendants make a prima facie case, the burden shifts to Plaintiffs to offer evidence
that would permit a jury properly instructed on the applicable legal and constitutional standards
to reasonably find that Defendants are liable for defamation. See Mann, 150 A.3d at 1232. “The
precise question here, therefore, is whether a jury properly instructed on the law, including any
applicable heightened fault and proof requirements, could reasonably find for the claimant on the
evidence presented.” Id. at 1236.
(1) Republication
Count 11 of Plaintiffs’ Supplemental Complaint alleges,
On August 21, 2018, the General Counsel and Board of APA republished the [Report] on the APA website at a new URL. They directed Council members and others to the [Report] through an email to the Council listserv, which includes persons who are not Council members, and by publishing on the APA’s public website the Board minutes authorizing the republication. Those minutes contain a link to the [Report]. The website is accessible to the public, not only to APA members.
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Supp. Compl. ¶ 524. Plaintiffs assert that these actions constitute a republication for the “simple
fact [that] the publications took place at separate times and reached different audiences. Nothing
more is necessary.” Nov. 15, 2019 Pls. Opp’n at 18. Defendants dispute Plaintiffs’
characterization of the August 2018 changes to the APA website and argue that the Report was
not republished. Mar. 21, 2019 APA Mot. at 11; Mar. 21, 2019 Sidley Austin Mot. at 2.
First, Defendants note that the August 2018 website change did not create a new URL for
the Report. Mar. 21, 2019 APA Mot. at 3; Mar. 21, 2019 Sidley Austin Mot. at 4. Rather, after
August 2018, the Report could no longer be accessed via its own landing page but only through a
link on the APA website’s Timeline page (“the Timeline”). Mar. 21, 2019 APA Mot. at 3; Mar.
21, 2019 Sidley Austin Mot. at 5. Prior to August 2018, “the Report could always be accessed
by a link to the Report from the Timeline.” Mar. 21, 2019 APA Mot., Ex. A Fredley Aff. ¶ 4.
Therefore, after the August 2018 changes, “[t]he link to the Report…[was] at the same place on
the Timeline as it was when it was originally posted to the APA website.” Mar. 21, 2019 APA
Mot. at 9.
Second, Defendants argue that they did not direct a new audience to the Report by
emailing and posting the meeting minutes approving the website change because the meeting
minutes contained a link to the Timeline only, not the Report. Mar. 21, 2019 APA Mot. at 4;
Mar. 21, 2019 Sidley Austin Mot. at 12. The Timeline contains approximately 170 links. Mar.
21, 2019 APA Mot. at 4.
Third, and finally, Defendants assert that adding to the Timeline links to four documents
commenting on the Report did not modify the substance of the Report. Mar. 21, 2019 APA Mot.
at 10, Ex. A Fredley Aff. ¶ 6; Mar. 21, 2019 Sidley Austin Mot. at 13.
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The Court concludes that as a matter of law, the APA’s actions on August 21, 2018 do
not constitute republication. Because the Timeline always contained a link to the Report, the
record does not support Plaintiffs’ position that the “APA republished the [Report] on the APA
website at a new URL,” Supp. Compl. ¶ 524, and that “the Report was published on separate
occasions and on different locations.” Nov. 15, 2019 Pls. Opp’n at 21. Moreover, there is no
evidence that Defendant APA intended to, or actually did, reach a new audience.
Similarly, Plaintiffs’ contention that Defendant APA sought a new audience by emailing
its Council of Representatives exaggerates the available evidence. The record shows that the
email sent to the APA’s Council of Representatives contained only a link to the Timeline, a
webpage with over 170 links, and notified Council members that the motion to remove the
Report from its landing page was passed. Mar. 21, 2019 APA Mot. at 4. Also, the August 2018
meeting minutes posted on the APA’s website contains links to the Timeline, not the Report. Id.
In fact, the August 2018 meeting minutes consists of twenty two pages of information, most of
which does not relate to or reference the Report. Mar. 21, 2019 APA Mot., Ex. 1. Finally, there
was no modification, or revision, to the Report. The addition of links to the Timeline
commenting on the Report is insufficient to republish the Report as these additional links did not
link to the Report and did not appear on the same webpage as the Report. Mar. 21, 2019 APA
Mot. at 3; Mar. 21, 2019 Sidley Austin Mot. at 5. Accordingly, there was no republication of the
Report as a matter of law and Plaintiffs’ Count 11 must be dismissed.
(2) Actual Malice
The Plaintiffs must present clear and convincing evidence that Defendants acted with
actual malice given their status as public officials. Actual malice exists where a statement is
made “with knowledge that it was false or with reckless disregard of whether it was false or
22
not.’” Thompson v. Armstrong, 134 A.3d 305, 311 (D.C. 2016) (quoting New York Times Co.,
376 U.S. at 279-80).
The Plaintiffs received the opportunity to conduct targeted discovery prior to filing their
oppositions to the Defendants’ motions as permitted under D.C. Code § 16-5502(c)(2).
Specifically, on February 8, 2019, this Court granted in part Plaintiffs’ motion for limited
discovery to include the following information:
Depositions of Drs. Michael Honaker, Heather Kelly, and Stephen Soldz.6
Answers to the four interrogatories to Defendant APA served with the Complaint.
A mirror image copy of all electronic data contained on the personal computer and hard drive of Dr. Stephen Behnke retrieved by Defendants Sidley Austin as part of its investigation.
The witness interview notes or communications created during the Sidley Austininvestigation for the 18 witnesses from whom the Plaintiffs received affidavits.
Despite this discovery, Plaintiffs fail to proffer evidence that a reasonable jury could find
to be clear and convincing proof that Defendants knew that facts stated in, or reasonably implied
by, the Report were false or that they published the Report with reckless disregard of the falsity
of these stated or implied facts.
Nevertheless, Plaintiffs contend that several categories of information, when subjected to
“a holistic examination” and viewed in the aggregate, combine to provide “more than enough
evidence to demonstrate Defendants’ actual malice.” Nov. 18, 2019 Pls. Opp’n at 5 (citing
Tavoulares v. Piro, 817 F. 2d 762, 794 (D.C. Cir. 1987)).
The foundation for this argument rests with thirty five individual statements found in
Exhibit C, which is part of Plaintiffs’ Consolidated Opposition to Defendants’ First Set of
6 This Court subsequently vacated the provision for depositions in an order dated September 25, 2019.
23
Contested Special Motions to Dismiss filed March 21, 2019,7 under the District of Columbia
Anti-SLAPP Act, D.C. Code § 16-5002. The statements consist of thirty four affidavits from
different persons and one memorandum from Dr. L. Michael Honaker. See generally, Exhibit C.
Five affidavits represent statements from current and former plaintiffs consistent with the claims
alleged in the complaint. Two affidavits are statements from individuals that Sidley Austin did
not interview as part of the investigative process.8 The remaining twenty eight statements come
from persons interviewed during the investigation who are not or who have not been plaintiffs in
this case.
First, Plaintiffs argue that during their investigation, Defendants had documents and
government reports in their possession that contradicted the Report’s conclusions. Nov. 18, 2019
Pls. Opp’n at 21. However, Plaintiffs fail to explain whether the entities that issued those
governmental reports had access to the same documents, email exchanges and witnesses used as
sources for the Report. Similarly, it is unclear to what extent those reports were commissioned
with mandates comparable to the directive that APA provided to Sidley & Austin for the internal
review, focused on the same issues explored in that investigation or applied different ethical or
procedural rules in reaching their conclusions. Thus, the mere existence of those reports does
not support the claim that Defendants acted with malice in drafting the Report.
Besides affidavits from current or former litigants, the Plaintiffs proffer declarations from
multiple witnesses contending that information they provided was not included in the Report or
disagreeing with how their declarations were portrayed. When one considers the scope of the
investigation, the number of witnesses and the volume of materials reviewed, it is difficult to
7 Defendants’ First Set of Contested Special Motions to Dismiss was filed October 13, 2017.8 Affiant Donna Beavers expressed disagreement with the Report’s conclusions, but was not interviewed. Affiant Arman Gungor is a Certified Computer Examiner who described metadata found and emails retrieved during his analysis of electronic data. See generally Exhibit C.
24
understand how omitting a comment here or an opinion there would amount to malice. See,
Affidavit of Susan Brandon in Support of Plaintiffs’ Memorandum in Opposition to Defendants’
Special Motion to Dismiss Under the D.C. Anti-SLAPP Act, at 1 (“The Report is not an accurate
characterization of my comments in the interview”); Affidavit of Robert J. Sternberg in Support
of Plaintiffs’ Memorandum in Opposition to Defendants’ Special Motion to Dismiss Under the
D.C. Anti-SLAPP Act, at 4 (“To this day, I believe that the Report seriously misrepresented what
I said”); Affidavit of Harry Matarazzo in Support of Plaintiffs’ Memorandum in Opposition to
Defendants’ Special Motion to Dismiss Under the D.C. Anti-SLAPP Act, at 2 (“Notably, certain
written and verbal information that Dr. Matarazzo provided was not present, while other
information was set forth in an equivocal manner”); and Affidavit of Scott Shumate in Support
of Plaintiffs’ Memorandum in Opposition to Defendants’ Special Motion to Dismiss Under the
D.C. Anti-SLAPP Act, at 3 (“The Report’s description of my understanding of interrogations
appears to be cherry-picked from available information in order to portray me in a biased and
misleading light”). Notably, these comments and similar comments from other affiants address
disagreements with the Report about what a specific affiant said or did not say. These omissions
and mischaracterizations, even if true, do not support an inference that Defendants acted with
malice with respect to specific conclusions about the Plaintiffs found in the Report.
Next, Plaintiffs maintain that Defendants undertook the internal review process with a
preconceived agenda to specifically target the Plaintiffs in this case, relied on biased and
unreliable sources and purposely avoided the truth. Nov. 18, 2019 Pls. Opp’n at 21. Again, this
argument is rooted in declarations within attached affidavits that echo each other in tenor and
vocabulary. See Affidavit of Jennifer Bryson in Support of Plaintiffs’ Memorandum in
Opposition to Defendants’ Special Motion to Dismiss Under the D.C. Anti-SLAPP Act, at 2
25
(“During the interview, I was struck by a definite sense that the Sidley interviewer was targeting
Dr. Behnke in the service of a preconceived narrative…”); Affidavit of Lisa Callahan in Support
of Plaintiffs’ Memorandum in Opposition to Defendants’ Special Motion to Dismiss Under the
D.C. Anti-SLAPP Act, at 2 (“I was given the distinct impression that the Sidley independent
review was intended to find evidence that the Ethics Office staff had exercised undue influence
over the ethics adjudication process”); Affidavit of Armand Cerbone in Support of Plaintiffs’
Memorandum in Opposition to Defendants’ Special Motion to Dismiss Under the D.C. Anti-
SLAPP Act, at 1 (“During my interview, Ms. Carter questioned me about, among other things,
Dr. Behnke in a manner that evidenced a preconceived narrative …”); Affidavit of Robin
Deutsch in Support of Plaintiffs’ Memorandum in Opposition to Defendants’ Special Motion to
Dismiss Under the D.C. Anti-SLAPP Act, at 3 (“During my interview with Mr. Hoffman,
questions he posed left me with the distinct impression that he had a preconceived narrative and
had already concluded that … Dr. Stephen Behnke, had engaged in inappropriate behavior”);
Affidavit of Elizabeth Swenson in Support of Plaintiffs’ Memorandum in Opposition to
Defendants’ Special Motion to Dismiss Under the D.C. Anti-SLAPP Act, at 2 (“… it had been
my impression … that Sidley Austin interviewers had an agenda and a preconceived
narrative…”). Aside from these statements perhaps representing opinion testimony, it is not
possible to tell from this record where along the investigative process involving some 150
witnesses these specific interviews took place, and what information investigators had received
prior to the interviews leading them to focus their inquiry. Thus, the impressions of these
affiants, even if true, would not support a finding of malice.
Furthermore, Plaintiffs question the Defendants reliance on four allegedly biased
witnesses in reaching the Report’s conclusions. See Nov. 18, 2019 Pl. Opp’n at 45. Those
26
witnesses were Drs. Stephen Soldz, Nathaniel Raymond, Jean María Arrigo and Trudy Bond. Id.
at 45-46. However, those four individuals were only a fraction of the approximately 150
witnesses interviewed and 50,000 documents reviewed. The possibility that these witnesses
were biased does not suffice to establish malice.
At best, Plaintiffs have shown that Defendants Sidley Austin received contradictory and
diverse statements, opinions and recollections during the investigative process. Such different
opinions and diverse statements are to be expected in matters subject to exhaustive debate in the
public arena.9 Moreover, inconsistencies and conflicting recollections are not uncommon in
extensive investigations involving large numbers of witnesses. Combined with other arguments
that Plaintiffs have raised, these factors do not support claims that Defendants had subjective
knowledge of the Report’s falsity, or acted with reckless disregard for whether or not the
statements in the Report were false.
With respect to Plaintiffs’ argument that Defendants purposely avoided the truth, the
evidence proffered does not satisfy the clear and convincing evidence standard. Indeed, the
evidence that Plaintiffs describe is not the entirety of the information compiled during the
internal review and their argument ignores the length of the investigative process. Although the
record shows that Defendants Sidley Austin interviewed a handful of Plaintiffs’ critics, that fact
does not establish that Defendants Sidley Austin had “obvious reasons to doubt the veracity” of
these sources. See St. Amant, 390 U.S. at 732. Furthermore, Defendants Sidley Austin did not
“rely on a single, questionable source without fact-checking, interviewing additional witnesses,
or seeking independent support,” to avoid the truth and establish a predetermined narrative.
Talley v. Time, Inc., 923 F.3d 878, 904 (10th Cir. 2019) (citing Curtis Pub. Co. v. Butts, 388 U.S.
9 As discussed above, the use of enhanced interrogation or torture, the appropriate treatment of detainees and the proper role of psychologists in these situations exemplify topics subject to extensive public debate.
27
130, 157-58 (1967)); accord Harte-Hanks Commc’ns v. Connaughton, 491 U.S. 688, 692 (1989).
To the contrary, it is undisputed that Defendants Sidley Austin interviewed about 150 witnesses,
performed follow up interviews with 50 witnesses, and reviewed some 50,000 documents during
the course of their eight-month investigation. Sidley Austin Reply to Nov. 15, 2019 Opp’n at 25.
As such, the evidence that Plaintiffs present fails to show that Defendants Sidley Austin pursued
a preconceived outcome, relied on biased and unreliable sources that impacted the conclusions of
the investigation and purposely avoided the truth. Here, a reasonable jury properly instructed on
the law would be hard-pressed to find clear and convincing evidence of actual malice.
Additionally, Plaintiffs contend that the Defendants’ investigation departed from
accepted professional standards and that Defendants refused to retract the Report after
publication. Nov. 18, 2019 Pls. Opp’n at 21. Plaintiffs charge of improper investigation fails as
a “defamation plaintiffs cannot show actual malice in the abstract; they must demonstrate actual
malice in conjunction with a false defamatory statement.” See Tavoulareas, 817 F.2d at 794
(emphasis in original). Aside from stating their conclusions, the Plaintiffs fail to make this
necessary connection. Moreover, Plaintiffs fail to establish any duty on behalf of Defendants to
retract or correct the Report post publication, particularly after legal action related to the contents
of the report had been filed. In any event, the actual malice standard turns on whether
Defendants were subjectively aware that the statements in the Report were false or acted in
reckless disregard of their falsity, at the time the statements were made. It is a standard that
Plaintiffs have not satisfied. Therefore, even when combining the various arguments that
Plaintiffs advance, considering the totality of the record in this case, Plaintiffs fail to proffer clear
and convincing evidence that Defendants made any defamatory statements in the Report with
28
knowledge that a statement was false or with reckless disregard of its falsity. Thus, their claims
are not likely to succeed at trial.
Finally, it is important to point out a string of email communications that took place from
on or about March 7, 2006 to on or about July 2, 2007, which are appended as Exhibit C to the
Affidavit of Arman Gungor in Support of Plaintiffs’ Memorandum in Opposition to Defendants’
Special Motion to Dismiss Under the D.C. Anti-SLAPP Act. Mr. Gungor recovered these
undeleted emails from the Behnke hard drive that was provided in discovery. Id. ¶ 18. The
purpose of the communications was to coordinate responses to public discussions about APA
policies and to blunt criticisms related to treatment of detainees and interrogation practices.
Participants in these exchanges included current and former Plaintiffs Dr. Stephen Behnke, Dr.
Larry James and Dr. L. Morgan Banks, III, as well as affiants Dr. Michael Gelles and Dr. Robert
Fein. Curiously, the emails include phrases like “Eyes Only,” “Your eyes only,” “Please delete
after reading this,” and “Please review and destroy.” Since this correspondence was disclosed in
discovery which the Defendants provided, it is safe to assume that investigators reviewed and
considered the emails in reaching their conclusions.10
IV. CONCLUSION:
The D.C. Anti-SLAPP Act was enacted to protect the right of advocacy on issues of
public interest. The Act allows defamation suits involving statements about issues of public
interest to proceed, provided that the subjects of the alleged defamatory statement offer evidence
that they are likely to succeed on the merits. Plaintiffs have failed to proffer evidence that
satisfies this standard.
10 In the alternative, assuming without deciding that Plaintiffs were private individuals instead of public officials for purposes of this defamation action, Plaintiffs have failed to proffer evidence in this record that in publishing the Report the Defendants “fail[ed] to observe an ordinary degree of care in ascertaining the truth of an assertion before publishing it to others.”Kendrick, 659 A.2d at 822.
29
Accordingly, this 12th day of March, 2020, it is ordered that:
1. Defendant American Psychological Association’s Contested Special Motion to Dismiss
Under the D.C. Anti-SLAPP Act D.C. Code § 16-5502 is GRANTED.
2. Defendants Sidley Austin LLP, Sidley Austin (DC) LLP, and David Hoffman’s
Contested Special Motion to Dismiss Under the District of Columbia Anti-SLAPP Act,
D.C. Code § 16-5502 is GRANTED.
3. Defendant American Psychological Association’s Contested Special Motion to Dismiss
Count 11 of the Supplemental Complaint Under the D.C. Anti-SLAPP Act, D.C. Code §
16-5502 is GRANTED.
4. Defendants Sidley Austin LLP, Sidley Austin (DC) LLP, and David Hoffman’s
Contested Special Motion to Dismiss Count 11 of the First Supplemental Complaint
Under the District of Columbia Anti-SLAPP Act D.C. Code § 16-5502 is GRANTED.
5. This case is dismissed with prejudice.
It is so ORDERED.
Honorable Hiram E. Puig-LugoAssociate Judge Signed in Chambers
Copies to:
Fara Kitton, Esq.John Williams, Esq.Counsel for Plaintiffs Morgan Banks, Debra Dunivin, and Larry James
Bonny Forrest, Esq.Counsel for Plaintiffs Morgan Banks, Debra Dunivin, and Larry James
Thomas A. Clare, Esq.Joseph R. Oliveri, Esq.
30
Counsel for Plaintiffs Morgan Banks, Debra Dunivin, and Larry James
Karen Carr, Esq. Barbara Wahl, Esq.Counsel for Defendant American Psychological Association
Thomas Hentoff, Esq. John Villa, Esq. Counsel for Defendants David Hoffman, Sidley Austin, LLP, and Sidley Austin LLP, DC